i  the  i 


READINGS  IN 
CIVIL  GOVERNMENT 


READINGS  IN 
CIVIL  GOVERNMENT 


BY 


PERCY  LEWIS  KAYE,  Ph.D. 

HEAD  OP  THE  DEPARTMENT  OP  HISTORY  IN  THE 
BALTIMORE  CITY  COLLEGE 


NEW  YORK 
THE  CENTURY  CO. 

1917 


A\ 


Copyright,  1910,  by 
THE  CENTURY  Co. 

Published,  September,  1910 


READINGS   IN   CIVIL   GOVERNMENT 


CONTENTS  AND  LIST  OF  CITATIONS 

PART  I 
THE  SPIRIT  OF  AMERICAN  GOVERNMENT 

CHAPTER  I 

THE  PRINCIPLES  OF  GOVERNMENT  IN  GENERAL 

PAGE 

1.  Definitions:  State,  Government,  Nation 3 

Leacock,    Stephen,   Elements   of  Political  Science,    12   sq., 
52  sq. 

2.  Constitutional  Government 9 

Wilson,  Woodrow,  Constitutional  Government  in  the  United 
States,  1  sq. 

3.  The  Meaning  of  Self-Government .15 

Abbott,  Lyman,  The  Outlook,  LXII,  147  sq.,  196  sq.  (1899). 

4.  How  the  Capacity  for  Self-Government  is  Acquired  ....     19 

Same  as  above,  No.  2,  51  sq. 

5.  The  Origin  of  Representative  Government 21 

Commons,  J.  R.,  Proportional  Representation,  11  sq. 

6.  The  People  vs.  The'  Representative 26 

Bryan,  W.  J.,  Hughes,  Charles  E.,  Hart,  M.  K.,  The  Outlook, 
LXXXVII,  730  sq.  (1907). 

CHAPTER  II 
FORMATION  OF  THE  FEDERAL  CONSTITUTION 

7.  The  Articles  of  Confederation 31 

8.  Defects  in  the  Articles  of  Confederation 39 

(a)  Amendments  Proposed  in  1781,  Bancroft,  History  of 

the  Constitution,  I,  287. 

(b)  The   Five   Per   Cent  Scheme,  Elliot's  Debates,  I.  93. 

(c)  Rhode    Island's    Objections    to    the    Five    Per    Cent 

Scheme,  Ibid.,  100. 

v 


424824 


vi  CONTENTS 

PAGE 

(d)  Hamilton's  Reply  to  Rhode  Island's  Objections,  Ibid., 

106. 

(e)  Commerce  and  Navigation  under  the  Confederation, 

Ibid.,  107. 

9.     The  Ratification  of  the  Constitution 44 

Landon,  Judson,  The  Constitutional  History  of  The  United 
States,  89  sq. 

CHAPTER  III 
DEVELOPMENT  OF  THE  CONSTITUTION 

10.  Written  and  Unwritten  Constitutions 51 

Bryce,  James,  Studies  in  History  and  Jurisprudence,   187 
sq. 

11.  The  Doctrine  of  Implied  Powers 55 

McCulloh  vs.  Maryland,  4  Wheaton,  406  sq.   (1819). 

12.  The  Interpretation  of  Rigid  Constitutions 61 

Same  as  above,  No.  10,  193  sq. 

13.  The  Present  Meaning  of  the  Constitution:  The  Strict  View     .     0.5 

Rogers,  H.  W.,  North  American  Review,  CLXXXVIII,  320 
sq.   (1908). 

14.  The  Present  Meaning  of  the  Constitution :  The  Liberal  View     .     69 

Amidon,  C.  F.,  Proceedings  of  the  American  Bar  Associa- 
tion, 1907,  465  sq. 

CHAPTER  IV 

RELATIONS  BETWEEN  STATE  AND  FEDERAL  GOVERNMENTS 

15.  New  Fields  for  Federal  Legislation 74 

The  Nation,  LXXXII,  131   (1906). 

16.  The  Constitution  and  the  New  Federalism 76 

Same  as  above,  No.  13,  321  sq. 

17.  State  vs.  Federal  Control 82 

Same  as  above,  No.  14,  473  sq. 

18.  The  States  and  the  Federal  Government 89 

Same  as  above,  No.  2,  177  sq. 

19.  The  Extradition  of  Fugitives  from  Justice  Between  the  States     92 

Wise,  J.  S.,  Citizenship,  174  sq. 


CONTENTS  vii 

CHAPTER  V 
THE  RIGHTS  AND  IMMUNITIES  OF  CITIZENSHIP 

PAGE 

20.  Citizenship  in  the  United  States 95 

Scruggs,  W.  L.,  North  American  Review,  CLXXVII,  840 
(1903). 

21.  The  Rights  and  Immunities  of  Citizenship 97 

Wise,  J.  S.,  Citizenship,  98  sq. 

22.  The  Rights  of  Citizenship  under  the  Fourteenth  and  Fifteenth 

Amendments         100 

Civil  Rights   Cases,    109   U.   S.,   3;   The   Slaughter  House 
Cases,  16  Wallace,  36. 

23.  The  Writ  of  Habeas  Corpus 105 

Crawford,    C.    C.,   American   Law  Review,   XLII,    481    sq. 
(1908). 

CHAPTER  VI 
POLITICAL  RIGHTS  AND  DUTIES 

24.  The  Nature  and  Extension  of  the  Suffrage Ill 

Willoughby,  W.  W.,  The  Nature  of  the  State,  410  sq. 

25.  The  Effect  of  the  Fourteenth  and  Fifteenth  Amendments  on 

the  Suffrage 113 

Same  as  above,  No.  20,  215  sq. 

26.  The  Position  of  the  Federal  Courts  with  Reference  to  the  Right 

of  Suffrage 116 

Same  as  above,  No.  21,  215  sq. 

27.  The   Education   of   Voters 118 

Haynes,  Geo.  H.,  Political  Science  Quarterly,  XX,  486  sq. 
(1907). 

28.  The  Responsibility  of  Citizenship 126 

Folk,  J.  W.,  Vanderbilt  University  Quarterly,  V,   155  sq. 
(1905). 

PART  II 
THE  FORM  OF  AMERICAN  GOVERNMENT 

CHAPTER  VII 

THE  HOUSE   OP  REPRESENTATIVES 

29.  The  Speaker  of  the  House  of  Representatives 129 

Hinds,  A.  C.,  American  Political  Science  Review,  III,  155 
sq.  (1909). 


viii  CONTENTS 

PAQB 

30.  The  Rules  of  the  House 136 

Dalzell,  John,  Independent,  LXIV,  577  sq.  ( 1908 ) . 

31.  The  Public  and  the  Congressional  Committee 145 

McConachie,  L.  G.,  Congressional  Committees,  59  sq. 

32.  An  Apportionment  Bill 148 

Statutes  at  Large  of  the  United  States,  XXXI,  733. 

33.  The  House  of  Representatives  and  the  House  of  Commons   .      .    149 

Herbert,  H.  A.,  North  American  Review,  CLVIII,  260  aq. 
(1894). 


CHAPTER  VIII 

THE   SENATE 

34.  Popular  Election  of  Senators: 

(a)  Haynes,  G.  H.,  The  Election  of  Senators,  259  sq.     .      .156 

(b)  The    Seventeenth    Amendment 161 

35.  The  Committees  of  the  Senate 162 

Avery,  B.,  Yale  Law  Journal,  X,  244  sq.  (1900). 

36.  The  Freedom  of  Debate  in  the  Senate 167 

Reinsch,  Paul,  American  Legislatures,  113  sq. 

37.  The  Usurped  Powers  of  the  Senate 170 

Low,  A.  M.,  American  Political  Science  Review,  I,  2  sq. 
(1907). 

38.  A  Defense  of  the  Senate 177 

Lodge,  H.  C.,  Scribners  Magazine,  XXXIV,  546  sq.  (1903). 

CHAPTER  IX 
THE   PRESIDENCY 

39.  Defects  in  the  Electoral  System 184 

Dougherty,  J.  H.,  The  Electoral  System,  250  sq. 

40.  Parliamentary  vs.  Presidential  Government 192 

Woodburn,  J.  A.,  The  American  Republic,  94  sq. 

41.  Executive    Supremacy 193 

Young,  J.  T.,  Proceedings  of  the  American  Political  Science 
Association,  I,  47  sq.  ( 1904 ) . 

42.  The  Powers  of  the  President 202 

Fairlie,    J.    A.,    National    Administration    of    the    United 
States,  9  sq. 


CONTENTS  ix 

CHAPTER  X 

THE  EXECUTIVE  DEPARTMENTS 

PAGE 

43.  The  Cabinet • 211 

Same  as  above,  No.  42,  54  sq. 

44.  Cabinet  and  Congress  in  Washington's  Administration   .      .      .218 

Hinsdale,  M.  L.,  Same  as  above,  No.  41,  II,  126  sq.  (1905). 

45.  Departmental  Dealings  with  Congressional  Committees  .      .      .   223 

Same  as  above,  No.  31,  221  sq. 

46.  Should  Members  of  the  Cabinet  have  Seats  in  Congress   .      .      .226 

Bradford,  Gamaliel,  Annals  of  the  American  Academy  of 
Social  and  Political  Science,  1893,  II,  406  sq. 

47.  Civil  Service  Reform 232 

Same  as  above,  No.  42,  252  sq. 

48.  Recent  Progress  in  the  Merit  System 238 

Twenty-fifth   Annual   Report   of   the    United  States   Civil 
Service  Commission,  1  sq.  ( 1908 ) . 

CHAPTER  XI 

THE  FEDERAL  JUDICIARY 

49.  Tenure  of  Office  in  the  Federal  Courts 243 

Hamilton,  Alexander,  The  Federalist,  No.  7&. 

50.  The  Character  of  the  Good  Judge 247 

Choate,  Rufus,  Works,  II,  286  sq. 

51.  The  Power  of  the  Courts  to  Declare  Laws  Unconstitutional   .   250 

Marburg  vs.  Madison,  I  Cranch,  137  sq.   (1803). 

52.  The  Process  and  Effect  of  Declaring  Legislative  Acts  Uncon- 

stitutional         255 

McClain,  Emlin,  Constitutional  Law  m  the  United  States, 
19  sq. 

CHAPTER  XII 
STATE  ADMINISTRATION 

53.  The  Development  of  State  Constitutions 261 

Bryce,  James,  American  Commonwealth,  I,  451  sq. 

54.  Recent  Tendencies  in  State  Government 265 

Dodd,  W.  F.,  same  as  above,  No.  41,  V,  149  sq.  (1908). 

55.  The  State  Governor 271 

Same  as  above,  No.  53,  531  sq. 

56.  Public  Service  Commissions 275 

Osborne,  T.  M.,  Atlantic  Monthly,  CI,  547  sq.  (1908). 


x  CONTENTS 

CHAPTER  XIII 

STATE   LEGISLATION 

PAGS 

57.  The  Defects  of  State  Legislation 282 

Reinsch,  Paul,  American  Legislatures,  299  sq. 

58.  The  Problems  of  Intelligent  Legislation 288 

Freund,  Ernst,  same  as  above,  No.  41,  IV,  69  sq.   (1907). 

59.  The  Initiative  and  Referendum 295 

(a)  Recent  Development 295 

Dodd,  W.  F.,  same  as  above,  No.  54. 

(b)  The  Oregon  Amendment 296 

(c)  Initiative  and  Referendum  in  Oregon 298 

U'Ren,  W.  S.,  same  as  above,  No.  41,  193  sq. 

60.  Primary  vs.  Representative  Government 303 

Garner,    J.    W.,    Proceedings    of    the    American    Political 
Science  Association,  IV,  164  sq.  ( 1907) . 

CHAPTER  XIV 

THE   STATE  JUDICIARY 

61.  Election  and  Tenure  of  State  Judges 311 

Baldwin,  S.  E.,  The  American  Judiciary,  313  sq. 

62.  Jury  Trial 316 

McClain,  Emlin,  Constitutional  Law  in  the  United  States, 
334  sq. 

63.  Problems  of  Trial  by  Jury 320 

Babb,  J.  E.,  same  as  above,  No.  60,  241  sq.  (1907). 

64.  The  Jury  in  Civil  Cases 325 

Braxton,  A.  C.,  American  Law  Review,  XXXVIII,  224  sq. 

65.  Criminal  Procedure  in  the  United  States 328 

Garner,    J.    W.,    North   American    Review,    CXCI,    50   sq. 
(1910). 

CHAPTER  XV 
MUNICIPAL  GOVERNMENT 

66.  Home    Rule    for    Cities 330 

Oberholtzer,   E.   P.,   International   Quarterly,   VI,   399   sq. 
(1902). 

67.  Results  of  Home  Rule 344 

Maltbie,  M.  R.,  Yale  Review,  XIII,  462  sq.  (1905). 


CONTENTS  xi 

PAQB 

68.  Council  Government  vs.  Mayor  Government 349 

Durand,  E.  D.,  Political  Science  Quarterly,  XV,  426  sq. 
(1900). 

69.  The  Des  Moines  Plan  of  City  Government 356 

Acts  of  the  General  Assembly  of  Iowa,  1907. 

70.  The  City  Manager  Plan 361 

James,    Herman    G.,    American   Political   Science   Review, 
VIII,  602  sq.    (1914). 

CHAPTER  XVI 
PARTY  ORGANIZATION 

71.  National  and  Local  Party  Organization 369 

Wilson,  Woodrow,  Constitutional  Government  in  the  United 
States,  208  sq. 

72.  What  the  Party  Machine  Has  to  do 373 

Bryce,  James,  American  Commonwealth,  II,  90  sq. 

73.  Some  Disputed  Points  in  Primary  Election  Legislation   .      .      .   378 

Merriam,  C.  E.,  same  as  above,  No.  60,  179  sq.    (1907). 

74.  The  Short  Ballot 384 

Childs,  R.  S.   The  Outlook,  XCII,  635  sq.  (1909). 

PART  III 
THE  FUNCTIONS  OF  GOVERNMENT 

CHAPTER  XVII 

INDIVIDUAL  FREEDOM  AND  LAW 

75.  Personal  Liberty  vs.  Governmental  Authority 392 

Mill,  J.  S.,  Essay  on  Liberty,  9  sq. 

76.  The  Non-Essential  Functions  of  Government 397 

Willoughby,  W.  W.,  The  Nature  of  the  State,  337  sq. 

77.  Governmental  Enterprise  in  the  Non-Essentials 402 

Martin,  John,  The  World's  Work,  XVI,  10651  sq. 

CHAPTER  XVIII 
PROBLEMS  OF  TAXATION 

78.  Defects  in  the  General  Property  Tax 411 

Seligman,   E.    R.,   Political   Science   Quarterly,   V,   25   sq. 
(1890.) 


xii  CONTENTS 


79.  The  Taxation  of  Securities 419 

Taussig,    F.    W.,    same   as    above,    No.    78,    XIV,    103    sq. 
(1899). 

80.  The  Corporation  Tax 428 

Same  as  above,  No.  78,  449  sq. 

81.  The  Income  Tax  Amendment  to  the  Federal  Constitution     .      .   434 

Statutes  at  Large,  Sixty-first  Congress,  First  Session,  185 
(1909). 

CHAPTER  XIX 
GOVERNMENT  FINANCE 

82.  Congressional  Finance 435 

Bryce,  James,  American  Commonwealth,  I,  175  sq. 

83.  The   Underwood   Tariff,    1913 441 

Statutes  at  Large. 

84.  Collection  of  the  Revenue 448 

Dewey,   D.    R.,   Financial   History   of   the    United   States, 
488  sq. 

85.  Municipal  Finance  Administration 452 

Fairlie,  J.  A.,  Municipal  Administration,  359  sq. 

86.  Municipal   Franchises 456 

Wilcox,  D.  F.,  The  American  City,  352  sq. 

CHAPTER  XX 
CURRENCY  AND  BANKING 

87.  The  Relation  of  the  United  States  Treasury  to  General  Finance  464 

Gage,  L.  J.,  North  American  Review,  CLXXXVII,  161  sq. 
(1908). 

38.     The  National  Banks  and  the  Panic  of  1907 469 

Ridgley,  W.  B.,  same  as  above,  No.  87,  168  sq. 

89.  The  Federal  Reserve  Bank  System 475 

Agger,  E.  E.,  Political  Science  Quarterly,  XXIX,  265  sq. 
(1914). 

CHAPTER  XXI 

THE  REGULATION  OF  COMMERCE 

90.  The  Power  of  Congress  to  Control  Inter-State  Commerce  .      .  483 

Wise,  J.  S.,  Citizenship,  154  sq. 


CONTENTS  xiii 

PAGE 

91.  The  Hepburn  Interstate  Commerce  Act  of  1906 486 

Statutes  at  Large,  XXXIV,  584  sq. 

92.  The  Sherman  Anti-Trust  Act  of  1890 490 

Statutes  at  Large,  XXVI,  209. 

93.  Federal  Control  of  Trusts 492 

Williams,   Talcott,   Annals  of   the  American   Academy  of 
Political  and  Social  Science,  XXXII,  240  sq. 

94.  The  Anti-Trust  Acts  of  1914 ....   497 

Seager,  Henry  R.,  Political  Science  Quarterly,  XXX,  448 
sq. 

CHAPTER  XXII 

ELECTIONS 

95.  The  City  the  Battle  Ground  of  Democracy 503 

Deming,  H.  E.,  The  Government  of  American  Cities,  192  sq. 

96.  Reform   of   Election   Laws 506 

Merriam,  C.  E.,  Primary  Elections,  167  sq. 

97.  The  Connecticut  Corrupt  Practices  Act 513 

Acts  of  the  Sta-te  of  Connecticut,  January,  1909,  Chapter 
253. 

98.  Repression  of  Political  Corruption 518 

McGovern,   F.   E.,   Proceedings  of  the  American  Political 
Science  Association,  IV,  266  sq.   (1907). 

99.  The  Recall 526 

Los  Angeles  City  Charter,  Section  198c. 


PREFACE 

In  preparing  this  Book  of  Readings  it  has  been  my  endeavor 
to  include  only  such  material  as  would  be  suitable  for  the  use 
of  secondary  students.  For  this  reason  documents  have  been 
almost  entirely  avoided.  The  purpose  of  the  book  is  to  place 
within  the  reach  of  teacher  and  student  selections  which 
will  serve  as  the  basis  for  class-room  discussions  of  important 
questions  in  government  and  so  to  arouse  on  the  part  of  the 
student  of  civil  government  a  greater  interest  in  the  inde- 
pendent reading  and  study  of  current  civic  and  political  top- 
ics. Standard  political  and  scientific  journals  have  been 
drawn  upon  largely  and  it  is  to  this  class  of  literature  espe- 
cially that  the  attention  of  the  young  student  should  be  di- 
rected, for  it  affords  abundant  and  attractive  material  for 
the  popular  study  of  the  more  pressing  governmental  prob- 
lems of  the  day.  Most  of  the  selections  have  been  cut  freely 
so  as  to  avoid  technical  and  unessential  details  and  reduce 
them  to  a  convenient  length.  In  the  arrangement  of  the 
selections  I  have  followed,  in  the  main,  the  plan  of  Forman's 
Advanced  Civics.  But,  although  the  book  is  intended  pri- 
marily as  a  supplement  to  that  text,  the  selections  are  each 
preceded  by  an  introductory  remark  so  that  they  can  be 
read  separately  and,  I  trust,  used  profitably  with  other  texts. 

I  desire  to  make  public  acknowledgment  of  my  indebtedness 

xv 


xvi  PREFACE 

to  the  several  gentlemen  who  have  assisted  me  in  the  work  of 
preparing  the  Readings.  With  Dr.  S.  E.  Forman  I  have  been 
in  frequent  communication  and  his  comments  have  been  uni- 
formly suggestive  and  helpful.  Dr.  W.  W.  Willoughby  of  the 
Johns  Hopkins  University  has  materially  assisted  me  in  lo- 
cating appropriate  material  on  many  subjects.  The  list  of 
selections  was  examined  and  criticised  by  Mr.  E.  E.  Hill, 
Chicago  Normal  School,  Chicago,  Illinois;  Mr.  H.  W.  Ed- 
wards, Berkeley  High  School,  Berkeley,  California;  Mr.  Rex 
W.  Wells,  East  High  School,  Toledo,  Ohio,  and  Dr.  Wm.  G. 
Wetzel,  Principal  of  High  School,  Trenton,  New  Jersey.  The 
manuscript  was  read  by  Dr.  James  Sullivan,  Principal  of  the 
Boys'  High  School,  Brooklyn,  N.  Y. 

I  must  also  here  acknowledge  my  appreciation  of  the  kind- 
ness of  the  several  publishers  and  authors  who  have  generously 
consented  to  the  use  of  these  extracts  and  articles. 

PERCY  L.  KAYE. 
Blue  Ridge  Summit,  Pa. 

August  1st,  1910. 


HEADINGS  IN  CIVIL  GOVERNMENT 


READINGS  IN  CIVIL  GOVERNMENT 

PART  I 
THE  SPIRIT  OF  AMERICAN  GOVERNMENT 

CHAPTER  I 
THE  PRINCIPLES   OF   GOVERNMENT  IN  GENERAL 

1.   DEFINITIONS:    STATE,    GOVERNMENT,    NATION. 

In  the  study  of  civil  government  the  terms  state,  government,  and 
nation  will  constantly  recur.  Therefore,  it  should  prove  useful  to 
obtain  at  the  outset  as  clear  and  definite  a  conception  of  the  exact 
meaning  of  these  terms  as  is  possible.  Professor  Stephen  Leacock 
in  his  Elements  of  Political  Science  makes  a  good,  accurate  state- 
ment of  the  sense  in  which  these  words  are  used  by  writers  on  this 
subject : * 

Political  science2  then,  deals  with  the  state;  it  is,  in  short, 
as  it  is  often  termed,  the  ''theory  of  the  state."  The 
word  "state"  is  sufficiently  familiar  to  have  been  used  in 
the  preceding  discussion  without  explanation.  It  is  now  nec- 
essary to  make  a  nearer  analysis  of  the  exact  meaning  to  be 
attached  to  the  term.  An  examination  of  the  ordinary  senses 
in  which  the  word  is  used  shows  at  once  a  considerable  latitude 
in  its  employment.  Thus  when  we  speak  of  the  different 
"states"  of  Christendom,  or  refer  to  France,  Germany,  etc., 
as  the  leading  states  of  Europe,  the  word  seems  roughly  to 

i  Reprinted  by  special  permission  of  Houghton,  Mifflin  and  Company. 

3 


4  READINGS  IN  CIVIL  GOVERNMENT 

correspond  with  such  terms  as  country,  international  power, 
etc.  When,  on  the  other  hand,  we  talk  of  the  relations  exist- 
ing between  the  *  *  church  and  the  state, ' '  we  have  no  reference 
to  international  affairs;  the  idea  implied  is  rather  that  of 
association  or  organization.  Again,  in  such  uses  as  "The 
State  and  the  Individual,"  or  in  the  title  of  one  of  Herbert 
Spencer's  books,  "The  Man  versus  the  State,"  the  word  is 
plainly  used  to  imply  a  contrast  between  the  individual  citi- 
zen and  the  collective  aspect  of  the  community.  Finally,  in 
such  phrases  as  "state  aid  to  the  poor,"  "state  control  of 
railroads,"  etc.,  what  is  thought  of  is  not  so  much  the  com- 
munity collectively  as  the  special  machinery  or  organized 
agency  through  which  the  community  acts. 

Out  of  the  different  elements  here  embodied  we  may  con- 
struct an  exact  conception  of  what  is  meant  by  the  state  in  the 
technical  language  of  political  science.  It  embodies  as  the 
factors  of  which  it  is  composed : — 

I.  A  territory. 
II.  A  population. 

III.  Unity. 

IV.  Organization. 

Let  us  briefly  examine  these  in  turn.  Without  a  definite 
territory  there  can  be  no  state.  The  Jews,  being  scattered 
abroad  and  dissociated  from  the  occupation  and  control  of 
any  particular  territory,  do  not  constitute  a  state.  Professor 
Holland  in  the  definition  given  in  his  * '  Elements  of  Jurispru- 
dence,"  speaks  of  a  "numerous  assemblage  of  human  beings 
generally  occupying  a  certain  territory."  But  it  seems  ad- 
visable to  insist  on  the  idea  of  land  teing  necessary.  Equally 
necessary  is  a  population.  It  goes  without  saying  that  an  un- 
inhabited portion  of  the  earth,  taken  in  itself,  cannot  form  a 
state.  The  third  requisite  is  said  to  be  unity.  By  this  is 
meant  that  the  territory  and  population  in  question  must 
form  no  part  of  a  wider  political  unit ;  nor  must  the  territory 
contain  any  portion  or  portions  which  while  forming  geo- 
graphically a  part  of  it,  are  not  a  part  of  it  politically.  The 
island  of  Haiti  is  a  geographical  unit,  but  being  divided  into 


THE  PRINCIPLES  OF  GOVERNMENT  5 

the  separate  republics  of  Haiti  and  Santo  Domingo,  does  not 
present  the  unity  required  to  constitute  a  state.  In  the  same 
way  the  separate  " states "  of  the  American  Union  are  not 
states  in  the  technical  sense  of  the  term,  since  each  forms  part 
of  the  single  political  entirety  known  as  the  United  States. 
The  United  States  as  a  totality  constitutes  a  state;  the  "state" 
of  Massachusetts  does  not.  The  final  requisite,  that  of  organi- 
zation, is  one  that  must  be  carefully  noted.  Even  granting 
that  we  have  a  territory  and  population  disconnected  from 
the  rest  of  the  world,  and  thus  in  a  sense  a  unit,  we  have  not 
yet  a  state.  Imagine,  for  example,  that  a  "  numerous  assem- 
blage of  human  beings,"  to  use  Professor  Holland's  phrase, 
were  deposited  upon  some  uninhabited  island  not  owned  or 
controlled  by  any  existing  government.  Here  we  should  have 
land  and  population  in  unity,  but  the  inhabitants,  having  as 
yet  no  cohesion  or  connection,  would  not  form  a  state.  Im- 
agine, however,  that  these  inhabitants,  being  persons,  we  may 
suppose,  accustomed  to  live  under  a  settled  government, 
should  agree  to  form  themselves  into  an  organized  body  and 
to  vest  the  control  of  all  of  them  in  the  hands  of  certain 
among  their  number.  "We  should  then  have  a  state.  Or  let 
us  imagine  a  very  different  state  of  affairs.  Suppose  that  a 
certain  number  of  the  inhabitants  were  enabled  by  their  su- 
perior physical  force  or  cunning  to  reduce  the  others  to  a  con- 
dition of  submission,  so  that  settled  relations  of  control  and 
obedience  were  established.  In  this  case  too  there  would  be 
a  state.  For  the  organization  needed  to  constitute  a  state 
need  not  be  one  established  by  mutual  consent  or  one  of  an 
equitable  nature.  The  mere  existence  of  settled  obedience 
to  a  superior,  coercive  force  is  all  that  is  required.  Any 
form  of  despotism  or  tyranny  which  fulfills  these  conditions 
establishes  a  political  state  just  as  much  as  does  a  government 
whose  authority  rests  on  a  general  acquiescence.  .  .  . 

Having  considered  the  general  idea  of  the  state  as  an  or- 
ganized community  occupying  a  definite  territory,  it  is  next 
necessary  to  make  a  further  analysis  of  the  organization  it- 
self. This  will  involve  the  discussion  of  the  relations  exist- 


6  READINGS  IN  CIVIL  GOVERNMENT 

ing  between  the  individual  citizen  and  the  state  as  a  whole. 
The  two  central  points  around  which  the  discussion  of  the 
present  and  the  succeeding  chapter  will  turn,  are  those  of  the 
sovereignty  of  the  state,  and  the  liberty  of  the  individual. 
These  two  ideas,  which  appear  at  first  sight  to  be  mutually 
contradictory,  will  be  shown  to  be  not  only  reconcilable,  but 
complementary  and  correlative  to  one  another. 

The  question  of  the  sovereignty  of  the  state  has  long  been 
a  vexed  topic  of  political  discussion,  and  one  that  has 
given  rise  to  the  most  serious  difficulties  and  misunderstand- 
ings. The  proposition  that  the  state  is  absolutely  sovereign 
over  the  individual  has  proved  itself  a  stumbling-block  and  a 
rock  of  offense  to  the  student  of  political  history.  Take,  for 
example,  the  enunciation  of  the  principle  of  sovereignty 
given  by  Professor  Burgess.  "I  understand  by  it,"  he  says, 
''the  original,  absolute,  unlimited,  universal  power  over  the 
individual  subject  and  all  associations  of  subjects."  This  is 
a  hard  saying  and  one  calculated  to  call  forth  at  first  sight  a 
most  emphatic  contradiction.  It  seems  to  sanction  the 
tyranny  of  the  state,  and  to  involve  the  sacrifice  of  individual 
rights.  A  nearer  analysis  of  the  proper  meaning  to  be  at- 
tached to  the  sovereignty  of  the  state  ought  to  rob  it  of  all 
offensive  connotation.  What  is  meant  is  simply  this.  The 
state  is  an  organized  community.  It  comes  into  existence 
when  the  relations  of  control  over  and  obedience  from  the 
individual  person  are  established.  This  obedience  may  or 
may  not  receive  the  approval  of  the  individual  rendering  it. 
The  fact  of  obedience  is  all  that  is  needed  in  order  that  the 
state  may  be  said  to  exist.  Somewhere  within  the  state  there 
will  exist  a  certain  person  or  body  of  persons  whose  com- 
mands receive  obedience.  The  commands  may  be  just  or  un- 
just, morally  speaking,  and  the  persons  in  power  may  be  put 
in  a  position  to  issue  them,  either  by  general  consent  or  by 
the  use  of  physical  force.  But  in  either  case  they  are  able  to 
make  their  commands  good  by  actual  coercion.  Unless  there 
is  such  a  body  there  is  no  state.  The  commands  thus  given 
are  called  laws.  A  law,  then,  is  a  command  issued  by  the 


THE  PRINCIPLES  OF  GOVERNMENT  7 

state.  Can  there,  then,  be  any  limit,  any  legal  limit,  to  the 
sovereignty,  or  legal  supremacy,  of  the  state  ?  Obviously  not, 
for  such  a  limit  would  imply  a  contradiction  in  terms.  A 
legal  limit  must  mean  a  limit  imposed  by  a  lawgiving  au- 
thority. Now  the  lawgiving  authority  is  the  sovereign  power 
of  the  state,  and  any  limits  it  might  put  on  its  own  power 
would  be  removed  as  soon  as  it  saw  fit  to  remove  them.  The 
lawgiving  power  of  the  lawgiving  body  is  therefore  of  neces- 
sity unlimited.  The  state,  in  other  words,  is  legally  sovereign. 
Looked  at  in  this  light  the  matter  simply  resolves  itself  into 
an  equation  in  terms.  .  .  . 

The  meaning  to  be  attached  to  the  word  state  will  be  ren- 
dered more  precise  by  distinguishing  it  from  society,  govern- 
ment, and  nation.  The  term  society  has  no  reference  to  ter- 
ritorial occupation ;  it  refers  to  man  alone  and  not  to  his  en- 
vironment. But  in  dealing  with  man  its  significance  is  much 
wider  than  that  of  state.  It  applies  to  all  human  communi- 
ties, whether  organized  or  unorganized.  It  suggests  not  only 
the  political  relations  by  which  men  are  bound  together,  but 
the  whole  range  of  human  relations  and  collective  activities. 
The  study  of  society  involves  the  study  of  man's  religion,  of 
domestic  institutions,  industrial  activities,  education,  crime, 
etc.  The  term  government,  on  the  other  hand,  is  narrower 
than  state.  It  refers  to  the  person  or  group  of  persons  (which 
in  a  modern  community  will  be  very  numerous)  in  whose 
hands  the  organization  of  the  state  places  for  the  time  being 
the  function  of  political  control.  The  word  is  sometimes  used 
to  indicate  the  persons  themselves,  sometimes  abstractly  to 
indicate  the  kind  and  composition  of  the  controlling  group. 
The  ordinary  citizens  of  a  community  are  a  part  of  the  state, 
but  are  not  part  of  the  government.  The  term  has  moreover 
no  reference  to  territory.  .  .  . 

In  the  next  place  it  is  to  be  observed  that  nation  and  state 
are  two  distinct  conceptions.  The  term  nation,  though  often 
loosely  used,  is  properly  to  be  thought  of  as  having  a  racial 
or  ethnographical  significance.  It  indicates  a  body  of  people 
—the  Germans,  the  French,  the  Hungarians,  etc. — united  by 


8  READINGS  IN  CIVIL  GOVERNMENT 

common  descent  and  a  common  language.  But  such  divisions 
by  no  means  coincide  with  the  political  divisions  of  the  civil- 
ized world  into  states.  Austria-Hungary  constitutes  a  single 
state,  but  its  population  is  made  up  of  members  of  a  great 
many  different  races.  The  political  division  of  the  civilized 
world  into  states  freely  intersects  with  the  division  into  races, 
although  sometimes  the  political  units — as  in  the  case  of  mod- 
ern France — are  almost  coincident  with  the  ethnographic. 
The  relation  between  political  organization  and  nationality 
has  been  a  changing  one.  In  the  classical  world,  in  the  city 
states  of  ancient  Greece  and  Italy,  kinship  among  the  citizens 
was  considered  an  elemental  factor  in  the  composition  of  the 
state.  In  ancient  Athens  and  Sparta  persons  of  alien  race 
were  not  considered  as  members  of  the  political  community. 
Hence  in  the  political  thought  of  classical  Greece  the  concep- 
tion of  the  state  is  limited  to  a  small  area  occupied  by  persons 
of  the  same  race.  In  the  Roman  world,  the  original  concep- 
tion of  a  city  state  with  a  common  nationality  was  trans- 
formed by  the  process  of  absorption  and  conquest  into  the 
larger  conception  of  a  world-wide  state  and  universal  sov- 
ereignty. Nationality  is  here  lost  from  sight.  The  foreign 
nations  occupying  the  subjugated  provinces  were  recognized 
by  the  virtue  of  the  Emperor  Caracalla's  act  of  general  in- 
franchisement  (A.  D.  212)  as  citizens  of  the  universal  em- 
pire. Such  a  conception,  as  will  be  seen  in  a  later  chapter, 
long  survived  as  the  basis  of  European  polity,  though  existing 
only  in  the  shadowy  form  of  the  titular  Holy  Roman  Empire. 
In  actual  fact,  however,  it  was  displaced  by  other  political 
conceptions.  Feudalism  brought  with  it  the  notion  of  terri- 
torial sovereignty  and  dynastic  supremacy.  A  state  became 
coincident  with  the  domain  owned,  if  one  may  use  the  term, 
by  a  particular  house  and  its  descendants,  and  quite  irrespec- 
tive of  the  nationalities  of  the  subject  peoples.  States  were 
formed  out  of  communities  of  varying  nationalities  by  inher- 
itance, by  cession,  by  marriage  of  their  sovereigns.  Witness 
for  example  the  sovereignty  of  Henry  II  over  Anjou,  Aqui- 
taine,  etc. ;  the  claim  of  Edward  III  to  the  crown  of  France  j 


THE  PRINCIPLES  OF  GOVERNMENT  9 

and  at  a  later  date,  the  empire  of  Charles  V,  who  inherited 
Burgundy,  Spain,  part  of  Italy,  and  various  Austrian  terri- 
tories. To  a  large  extent  this  political  fusion  has  fortunately 
been  accompanied  by  a  fusion  of  languages,  as  in  the  amalga- 
mation of  modern  France. 

It  was  in  the  nineteenth  century  that  the  claim  of  nation- 
ality as  the  paramount  basis  of  state  organization  strongly 
asserted  itself.  The  great  political  upheaval  consequent  upon 
the  American  and  French  revolutions  led  to  an  intense  na- 
tional movement  in  most  parts  of  Europe.  Under  its  influ- 
ence modern  Italy  has  been  converted  (1815-1870)  into  a 
national  state.  Germany  has  assumed  a  definite  national 
form  in  the  modern  German  Empire  (1871),  whose  boun- 
daries, however,  are  not  identical  with  those  occupied  by  the 
German  people.  In  other  countries — Hungary,  Ireland — • 
the  same  movement  has  been  seen  in  abortive  form,  while  the 
modern  aspirations  of  Pan-Slavism,  Pan-Germanism,  and 
"unredeemed"  Italy  foreshadow  the  part  that  nationality  is 
to  play  in  the  organization  of  the  states  of  the  future.  Com- 
mon nationality  is,  therefore,  though  not  an  actual  requisite 
in  the  composition  of  the  state  as  it  now  exists,  a  potent  factor 
in  its  formation. 

2.    CONSTITUTIONAL   GOVERNMENT. 

One  of  the  most  characteristic  features  of  modern  states  as  dis- 
tinguished from  the  ancient  is  that  which  is  implied  by  the  term 
constitutional.  We  are  constantly  talking  about  constitutional  his- 
tory, constitutional  law  and  constitutional  amendments,  but  what 
in  essence  is  constitutional  government1?  President  Wilson  in  the 
following  selection  answers  this  question  : 

By  a  constitutional  government  we,  of  course,  do  not  mean 
merely  a  government  conducted  according  to  the  provisions 
of  a  definite  constitution;  for  every  modern  government 
with  which  our  thoughts  deal  at  all  has  a  definite 
constitution,  written  or  unwritten,  and  we  should  not 
dream  of  speaking  of  all  modern  governments  as  "consti- 
tutional." Not  even  when  their  constitutions  are  written 


10  READINGS  IN  CIVIL  GOVERNMENT 

with  the  utmost  definiteness  of  formulation.  The  constitution 
of  England,  the  most  famous  of  constitutional  governments 
and  in  a  sense  the  mother  of  them  all,  is  not  written,  and  the 
constitution  of  Russia  might  be  without  changing  the  essen- 
tial character  of  the  Czar's  power.  A  constitutional  govern- 
ment is  one  whose  powers  have  been  adapted  to  the  interests 
of  its  people  and  to  the  maintenance  of  individual  liberty. 
That,  in  brief,  is  the  conception  we  constantly  make  use  of, 
but  seldom  analyze,  when  we  speak  of  constitutional  govern- 
ments. 

Roughly  speaking,  constitutional  government  may  be  said  to 
have  had  its  rise  at  Runnymede,  when  the  barons  of  England 
exacted  Magna  Carta  of  John;  and  that  famous  transaction 
we  may  take  as  the  dramatic  embodiment  alike  of  the  theory 
and  of  the  practice  we  seek.  The  barons  met  John  at  Run- 
nymede, a  body  of  armed  men  in  counsel,  for  a  parley  which, 
should  it  not  end  as  they  wished  it  to  end,  was  to  be  but  a 
prelude  to  rebellion.  They  were  not  demanding  new  laws 
or  better,  but  a  righteous  and  consistent  administration  of 
laws  they  regarded  as  already  established,  their  immemorial 
birthright  as  Englishmen.  They  had  found  John  whimsical, 
arbitrary,  untrustworthy,  never  to  be  counted  on  to  follow 
any  fixed  precedent  or  limit  himself  by  any  common  under- 
standing, a  lying  master  who  respected  no  man's  rights  and 
thought  only  of  having  his  own  will ;  and  they  came  to  have 
a  final  reckoning  with  him.  And  so  they  thrust  Magna  Carta 
under  his  hand  to  be  signed — a  document  of  definition,  which 
spoke  of  rights  which  had  been  disregarded  and  which  must 
henceforth  be  respected,  of  practices  until  now  indulged  in 
which  must  be  given  over  and  remedied  altogether,  of  ancient 
methods  too  long  abandoned  to  which  the  king  must  return; 
and  their  proposal  was  this :  ' '  Give  us  your  solemn  promise 
as  monarch  that  this  document  shall  be  your  guide  and  rule 
in  all  your  dealings  with  us,  attest  that  promise  by  your  sign 
manual  attached  in  solemn  form,  admit  certain  of  our  number 
a  committee  to  observe  the  keeping  of  the  covenant,  and  we 
are  your  subjects  in  all  peaceful  form  and  obedience;  re- 


THE  PRINCIPLES  OF  GOVERNMENT  11 

fuse,  and  we  are  your  enemies,  absolved  of  our  allegiance  and 
free  to  choose  a  king  who  will  rule  us  as  he  should. ' '  Swords 
made  uneasy  stir  in  their  scabbards,  and  John  had  no  choice 
but  to  sign.  These  were  the  only  terms  upon  which  govern- 
ment could  be  conducted  among  Englishmen. 

This  was  the  beginning  of  constitutional  government,  and 
shows  the  nature  of  that  government  in  its  simplest  form. 
There  at  Runnymede  a  people  came  to  an  understanding  with 
its  governors,  and  established  once  for  all  that  ideal  of  gov- 
ernment which  we  now  call  "constitutional" — the  ideal  of  a 
government  conducted  upon  the  basis  of  a  definite  under- 
standing, if  need  be  of  a  formal  pact,  between  those  who  are 
to  submit  to  it  and  those  who  are  to  conduct  it,  with  a  view  to 
making  government  an  instrument  of  the  general  welfare 
rather  than  an  arbitrary,  self-willed  master,  doing  what  it 
pleases — and  particularly  for  the  purpose  of  safeguarding  in- 
dividual liberty. 

The  immortal  service  of  Magna  Carta  was  its  formulation 
of  the  liberties  of  the  individual  in  their  adjustment  to  the 
law.  .  .  . 

And  so  the  instrumentalities  through  which  individuals  are 
afforded  protection  against  the  injustice  or  the  unwarranted 
exactions  of  government  are  central  to  the  whole  structure  of 
a  constitutional  system.  From  the  very  outset  in  modern 
constitutional  history  until  now  it  has  invariably  been  recog- 
nized as  one  of  the  essentials  of  constitutional  government 
that  the  individual  should  be  provided  with  some  tribunal  to 
which  he  could  resort  with  the  confident  expectation  that  he 
should  find  justice  there — not  only  justice  as  against  other 
individuals  who  had  disregarded  his  rights  or  sought  to  dis- 
regard them,  but  also  justice  against  the  government  itself, 
a  perfect  protection  against  all  violations  of  law.  Constitu- 
tional government  is  par  excellence  a  government  of  law. 

I  am  not  repeating  the  famous  sentence  of  the  Massachu- 
setts Bill  of  Rights,  "to  the  end  that  this  may  be  a  govern- 
ment of  laws  and  not  of  men."  There  never  was  such  a 
government.  Constitute  them  how  you  will,  governments  are 


12  READINGS  IN  CIVIL  GOVERNMENT 

always  governments  of  men,  and  no  part  of  any  government 
is  better  than  the  men  to  whom  that  part  is  intrusted.  The 
gauge  of  excellence  is  not  the  law  under  which  officers  act, 
but  the  conscience  and  intelligence  with  which  they  apply  it, 
if  they  apply  it  at  all.  And  the  courts  do  not  escape  the 
rule.  So  far  as  the  individual  is  concerned,  a  constitutional 
government  is  as  good  as  its  courts ;  no  better,  no  worse.  Its 
laws  are  only  its  professions.  It  keeps  its  promises,  or  does 
not  keep  them,  in  its  courts.  For  the  individual,  therefore, 
who  stands  at  the  centre  of  every  definition  of  liberty,  the 
struggle  for  constitutional  government  is  a  struggle  for  good 
laws,  indeed,  but  also  for  intelligent,  independent,  and  im- 
partial courts.  Not  only  is  it  necessary  that  the  people  should 
be  spoken  for  in  the  conduct  of  the  government  by  an  assem- 
bly truly  representative  of  them;  that  only  such  laws  should 
be  made  or  should  be  suffered  to  remain  in  force  as  effect  the 
best  regulation  of  the  national  life,  and  that  the  adminis- 
tration should  be  subject  to  the  laws.  It  is  also  necessary  that 
there  should  be  a  judiciary  endowed  with  substantial  and  in- 
dependent powers  and  secure  against  all  corrupting  or  per- 
verting influences;  secure,  also,  against  the  arbitrary  author- 
ity of  the  administrative  heads  of  the  government. 

Indeed,  there  is  a  sense  in  which  it  may  be  said  that  the 
whole  efficacy  and  reality  of  constitutional  government  re- 
sides in  its  courts.  Our  definition  of  liberty  is  that  it  is 
the  best  practicable  adjustment  between  the  powers  of  the 
government  and  the  privileges  of  the  individual;  and  lib- 
erty is  the  object  of  constitutional  government.  The  ulti- 
mate and  characteristic  object  of  a  constitutional  system  is 
not  to  effect  the  best  possible  adjustment  between  the  govern- 
ment and  the  community,  but  the  best  passible  adjustment 
between  the  government  and  the  individual ;  for  liberty  is  in- 
dividual, not  communal.  Throughout  English  history, 
throughout  all  the  processes  which  have  given  us  constitu- 
tional government  as  the  modern  world  knows  it,  those  who 
strove  to  restrain  or  to  moralize  government  have  perceived 
that  the  whole  reality  of  the  change  must  find  its  expression 


THE  PRINCIPLES  OF  GOVERNMENT  13 

in  the  opportunity  of  the  individual  to  resort  for  the  vindi- 
cation of  his  rights  to  a  tribunal  which  was  neither  govern- 
ment nor  community,  but  an  umpire  and  judge  between  them, 
or  rather  between  government  and  the  man  himself,  claiming 
rights  to  which  he  was  entitled  under  the  general  under- 
standing. 

Nothing  in  connection  with  the  development  of  constitu- 
tional government  is  more  remarkable,  nothing  commends 
itself  more  to  the  understanding  of  those  who  perceive  the 
real  bases  of  human  dignity  and  capacity,  than  the  way  in 
which  it  has  exalted  the  individual,  and  not  only  exalted  him, 
but  at  the  same  time  thrown  him  upon  his  own  resources,  as 
if  it  honored  him  enough  to  release  him  from  leading  strings 
and  trust  him  to  see  and  seek  his  own  rights.  The  theory 
of  English  and  American  law  is  that  no  man  must  look  to 
have  the  government  take  care  of  him,  but  that  every  man 
must  take  care  of  himself,  the  government  providing  the 
means  and  making  them  as  excellent  as  may  be,  in  order  that 
there  may  be  no  breach  of  the  peace  and  that  everything  may 
be  done,  so  far  as  possible,  with  decency  and  in  order,  but 
never  itself  taking  the  initiative,  never  of  its  own  motion  in- 
tervening, only  standing  ready  to  help  when  called  on.  Such 
an  attitude  pre-supposes  both  intelligence  and  independence 
of  spirit  on  the  part  of  the  individual;  such  a  system  elicits 
intelligence  and  creates  independence  of  spirit.  The  indi- 
vidual must  seek  his  court  and  must  know  his  remedy,  and 
under  such  a  compulsion  he  will  undertake  to  do  both.  The 
stimulation  of  such  requirements  is  all  that  he  needs,  in  ad- 
dition to  his  own  impulses  and  desires,  to  give  him  the  at- 
titude and  habit  of  a  free  man ;  and  the  government  set  over 
such  men  must  look  to  see  that  it  have  authority  for  every 
act  it  ventures  upon. 

It  further  emphasizes  this  view  and  purpose  of  our  law, 
that  no  peculiar  dignity  or  sanctity  attaches  amongst  us  to 
any  officer  of  government.  The  theory  of  our  law  is  that  an 
officer  is  an  officer  only  so  long  as  he  acts  within  his  powers; 
that  when  he  transcends  his  authority  he  ceases  to  be  an  offi- 


14  READINGS  IN  CIVIL  GOVERNMENT 

cer  and  is  only  a  private  individual,  subject  to  be  sued  and 
punished  for  his  offense.  An  officer  who  makes  a  false  arrest 
without  warrant  is  liable  to  civil  suit  for  damages  and  to 
criminal  prosecution  for  assault.  He  has  stepped  out  of  the 
ranks  of  public  officers,  represents  nobody  but  himself,  and 
is  merely  committing  a  private  wrong.  That  is  the  explicit 
principle  of  American  law  not  only,  but  of  English  law  also ; 
the  American  practice  is  derived  from  the  English.  It  is  a 
logical,  matter-of-course  inference  of  the  constitutional  sys- 
tem ;  representatives  of  government  have  no  authority  except 
such  as  they  derive  from  the  law,  from  the  regulations  agreed 
on  between  the  government  and  those  who  are  to  be  governed. 
Whoever  disregards  the  limits  of  the  law  transgresses  the 
very  fundamental  presumptions  of  the  system  and  becomes 
merely  a  lawbreaker,  enjoying  no  privilege  or  exemption. 
Such  a  principle  in  effect  repeats  the  understanding  of  Run- 
nymede:  "Here  is  this  charter;  sign  it  and  observe  it,  and 
you  are  our  king;  refuse  to  sign  it,  violate  or  ignore  it  and 
you  are  not  our  king,  but  a  man  without  kingly  authority 
who  has  done  us  wrong,  and  we  are  your  enemies  and  shall 
seek  redress."  It  is  the  same  understanding  from  the  king 
at  the  top  to  the  constable  at  the  bottom. 

It  remains  only  to  note  what  may  be  called  the  atmosphere 
of  constitutional  government.  It  is  the  atmosphere  of  opin- 
ion. Opinion  is,  of  course,  the  atmosphere  of  every  govern- 
ment, whatever  its  forms  and  powers:  governments  are  con- 
trasted with  one  another  only  by  the  degree  and  manner  in 
which  opinion  affects  them.  There  is  nowhere  any  such  thing 
as  a  literally  absolute  government.  The  veriest  despot  is  a 
creature  of  circumstances,  and  the  most  important  circum- 
stance of  all,  whether  he  is  conscious  of  adjusting  himself 
to  it  or  not,  is  the  disposition  of  those  about  him  to  obey 
him  or  to  defy  him.  Certain  things  are  definitely  expected 
of  him:  there  are  certain  privileges  which  he  must  always 
respect,  certain  expectations  of  caste  and  of  rank  which  he 
must  always  punctiliously  regard.  Above  all  there  is  the 
great  body  of  habit,  the  habitual  frame  of  the  life  in  which 


THE  PRINCIPLES  OP  GOVERNMENT  15 

his  own  people  have  been  formed,  which  he  would  throw  him- 
self against  in  vain.  The  boundaries  of  his  authority  lie 
where  he  finds  the  limits  of  his  subjects'  willingness  or  ability 
to  obey  him.  They  cannot  obey  him  if  he  seek  to  force  upon 
them  rules  too  strange  to  their  habit ;  they  will  not  know  how, 
and  their  spirits  will  revolt.  They  will  not  obey  him  if  he 
outrage  them  by  too  gross  a  violation  of  the  understandings 
which  they  have  come  to  regard  as  sacred  and  of  the  very  es- 
sence of  their  life  and  happiness.  The  difference  between  a 
constitutional  system  and  an  unconstitutional  is  that  in  a 
constitutional  system  the  requirements  of  opinion  are  clearly 
formulated  and  understood,  while  in  an  unconstitutional  they 
are  vague  and  conjectural.  The  unconstitutional  ruler  has 
to  guess  where  his  subjects  will  call  a  halt  upon  him,  and  ex- 
periment at  the  hazard  of  his  throne  and  head ;  the  constitu- 
tional ruler  definitely  knows  the  limits  which  he  must  not 
transgress  and  is  safe  in  his  authority  so  long  as  he  does  not 
overstep  them. 


3.   THE   MEANING   OP   SELF-GOVERNMENT. 

On  the  fourth  day  of  July,  1776,  the  Continental  Congress  acting 
in  behalf  of  the  thirteen  colonies  then  engaged  in  armed  resistance 
to  the  authority  of  England,  adopted  the  Declaration  of  Independ- 
ence. From  that  day  to  this  the  United  States  has  stood  as  the 
typical  example  of  a  self-governing  community.  The  success  of 
this  experiment  in  government  has  been  due  to  the  fact  that  the 
people  of  the  thirteen  colonies  were  at  the  time  the  Declaration  of 
Independence  was  made  already  endowed  with  the  capacity  essen- 
tial for  self-government.  The  nature  of  this  capacity  is  very  clearly 
and  forcibly  explained  by  Dr.  Lyman  Abbott: 

A  great  deal  of  current  discussion  assumes  that  the  Dec- 
laration of  Independence  is  a  declaration  in  favor  of  self-gov- 
ernment, and  that  consistency  requires  that  a  Republic 
initiated  by  such  a  statement  of  principles  should  recognize 
the  right  of  self-government  in  all  peoples.  .  .  .  But  it 
so  happens,  as  a  matter  of  fact,  that  this  document  says  noth- 
ing whatever  about  self-government.  Only  one  clause,  and 


16  EEADINGS  IN  CIVIL  GOVERNMENT 

that  a  parenthetical  one — the  phrase  "deriving  their  just 
powers  from  the  consent  of  the  governed" — can  be  inter- 
preted to  imply,  even  remotely,  any  doctrine  of  self-govern- 
ment, and  this  implication  from  this  phrase  is  by  no  means 
a  necessary  one.  For  it  is  quite  conceivable  that  a  people 
might  very  gladly  consent  to  be  governed  by  others  and  re- 
lieved of  all  the  responsibility  of  governing. 

What  the  Declaration  affirms  is  that  governments  exist  for 
the  benefit  of  the  governed;  and  this  is  very  different  from 
affirming  that  they  must  always  be  administered  by  the  gov- 
erned. ...  It  declares  that  men  have  certain  inalienable 
rights,  and  it  does  not  include  the  right  of  self-government 
among  them ;  that  the  end  of  government,  and,  by  implication, 
the  sole  end  of  government,  is  to  protect  these  rights;  that 
when  government  becomes  destructive  of  these  rights  it  ought 
to  be  overthrown ;  that  the  people,  when  they  have  overthrown 
it,  have  a  right  to  establish  a  new  government  in  whatever 
form  will  insure  public  safety  and  happiness — being  free; 
and,  by  implication,  that  they  may  choose  for  that  purpose 
a  military  or  a  civil  government,  an  autocracy,  aristocracy, 
oligarchy,  representative  democracy,  or  pure  democracy.  In 
fact,  our  fathers  chose  as  their  first  form  of  government,  not 
a  pure  democracy,  but  a  republic  in  which  aristocracy  and 
representative  democracy  were  intermingled.  Negroes,  In- 
dians and  foreigners  could  not  vote;  nor  native-born  Amer- 
icans, unless  they  possessed  some  property  qualification,  in 
some  of  the  States,  or  some  religious  qualification  in  others. 
The  people  were  not  allowed  to  choose  their  own  President — 
he  was  chosen  for  them  by  a  representative  body ;  nor  to  make 
their  own  laws — they  were  made  for  them  by  another  repre- 
sentative body.  It  is  doubtful  whether  even  a  considerable 
minority  would  have  approved  the  referendum  or  the  initia- 
tive, and  it  is  certain  that  practically  none  would  have  sub- 
mitted judicial  questions  to  the  people  at  a  general  election 
or  even  to  a  mass-meeting  of  representative  citizens,  as  they 
are  submitted  to  the  General  Assembly  by  the  constitution 
of  the  Presbyterian  Church.  .  .  . 


THE  PRINCIPLES  OF  GOVERNMENT  17 

There  are  times  when  self-government  is  palpably  incon- 
sistent with  the  Declaration  of  Independence.  Self-govern- 
ment in  the  Indian  Territory  created  a  plutocracy,  which 
is  the  meanest  and  most  despicable  of  all  forms  of  govern- 
ment. It  made  the  Territory  a  paradise  for  land  rob- 
bers, and  a  refuge  for  the  banditti  and  train-wreckers  who 
fled  thither  after  each  succeeding  tragedy  to  escape  the 
processes  of  the  courts.  ...  At  length,  in  order  to  pro- 
tect the  inalienable  right  of  life,  liberty,  and  the  pursuit  of 
happiness,  it  became  necessary  to  go  into  that  Territory,  over- 
throw its  form  of  self-government,  and  institute  a  new  gov- 
ernment which  would  do  something  to  secure  that ' '  safety  and 
happiness  of  the  people "  for  which,  according  to  the  Declara- 
tion of  Independence,  governments  are  instituted  among  men. 
In  Santiago  the  death-rate  under  Spanish  misrule  was  seven 
hundred  a  week ;  under  General  Wood 's  beneficent  despotism 
it  is  reduced  to  forty  or  fifty  a  week.  That  under  Cuban 
self-government  it  would  have  taken  half  a  century  to  ac- 
complish the  sanitary  reforms  which  General  Wood  has  ac- 
complished in  half  a  year  is  certain;  that  they  would  ever 
have  been  accomplished  is  doubtful.  Which  takes  the  prece- 
dence, the  right  to  life  of  the  six  hundred  and  fifty  killed 
every  week  before  their  time,  or  the  right  of  the  Cubans  to 
so  administer  municipal  government  as  to  kill  them?  There 
is  but  one  answer  to  that  question.  .  .  . 

In  fact,  self-government  is  not  a  right  at  all — it  is  a  capac- 
ity. We  might  as  well  say  it  is  the  inalienable  right  of  every 
man  to  read  or  every  animal  to  fly  as  to  say  that  it  is  the 
inalienable  right  of  every  community  to  govern  itself.  It  is 
wrong  to  forbid  men  to  read;  but  there  are  men  who  cannot 
read,  and  if  they  are  to  learn  anything  they  must  be  read 
to ;  it  is  wrong  to  forbid  men  to  exercise  self-government,  but 
there  are  men  who  cannot  exercise  self-government,  and  if 
they  are  not  to  destroy  both  themselves  and  others,  they  must 
be  controlled.  Self-government  or  self-command  is,  says  the 
Century  Dictionary,  "that  equanimity  which  enables  one  in 
any  situation  to  be  reasonable  and  prudent,  and  to  do  what 


18  READINGS  IN  CIVIL  GOVERNMENT 

the  circumstances  require.  * '  If  a  man  possess  this  equanimity, 
is  reasonable  and  prudent,  can  do  and  does  do  what  the  cir- 
cumstances require,  he  has  a  right  to  be  let  alone.  But  if  he  has 
not  this  equanimity,  if  he  is  not  reasonable  and  prudent,  if  he 
does  not  do  what  the  circumstances  require,  he  is  not  to  be  let 
alone ;  he  is  to  be  controlled  by  men  who  possess  the  qualities 
which  he  lacks.  Self-government  is  a  capacity  and  the  right 
to  exercise  a  capacity  depends  on  the  possession  of  it.  He 
who  has  no  capacity  to  govern  himself  has  no  inalienable 
right  to  pretend  to  govern  himself  and  try  to  govern  others. 

But  because  self-government  is  not  a  right  but  a  capacity, 
and  a  right  only  as  the  capacity  is  first  developed,  therefore 
self-government  is  the  ideal  form  of  government.  For  all 
true  government  consists  in  the  control  of  the  lower  and 
worse  elements  by  the  higher  and  the  better.  When  the  lower 
and  the  worse  control  and  the  higher  and  better  are  super- 
seded or  are  in  abeyance,  there  is  no  true  government.  A 
man  who  is  under  what  we  call  the  control  of  his  appetites  or 
passions  is  not  exercising  self-control  at  all;  for  self-control 
means  the  control  of  the  lower  self  by  the  higher  self.  So  a 
community  which  is  under  the  control  of  its  passions  is  not 
self-governed;  for  self-government  means  the  government  of 
the  worse  by  the  better.  Mob  law  is  only  an  euphemism  for 
lawlessness.  Certainly  all  good  government  is  that  in  which 
the  good  controls  and  the  evil  is  controlled.  It  is  quite  evi- 
dent, therefore,  that  the  best  government  is  that  in  which  in 
every  individual  the  good  controls  and  the  evil  is  controlled. 
Majority  government,  which  a  great  many  people  seem  to  re- 
gard as  identical  with  self-government,  though  it  is  quite  dif- 
ferent, would  make  an  infernal  bedlam  out  of  a  lunatic  asylum, 
for  it  would  put  the  physicians  and  the  keepers  under  control 
of  the  lunatics.  Majority  government  is  no  government  for  a 
lunatic  asylum.  But,  on  the  other  hand,  self-government  is  the 
end  which  the  physicians  and  the  keepers  have  constantly  in 
view.  Their  aim  is  so  to  exercise  their  control  as  to  develop  in 
the  lunatics  intrusted  to  their  charge  the  power  of  controlling 
themselves.  The  lunatic  is  under  the  command  of  one  who 


THE  PEINCIPLES  OF  GOVERNMENT  19 

has  equanimity  and  is  reasonable  and  prudent,  in  order  that, 
if  possible,  there  may  be  imparted  to  him  such  equanimity 
and  such  measure  of  reason  and  prudence  that  at  the  earliest 
possible  moment  he  can  take  command  of  himself.  The  luna- 
tic has  no  right  of  self-government  until  he  has  the  capacity 
for  self-government ;  but  he  is  governed  in  order  that  he  may 
be  endowed  with  that  capacity. 

4.   HOW  THE  CAPACITY  FOB  SELF-GOVERNMENT  IS  ACQUIRED. 

Dr.  Abbott  has  explained  what  constitutes  the  capacity  for  self- 
government.  President  Woodrow  Wilson  points  out  the  way,  and 
the  only  way,  by  which  this  capacity  can  be  acquired: 

Constitutional  government  can  exist  only  where  there  is 
actual  community  of  interest  and  of  purpose,  and  cannot,  if  it 
be  also  se£/-government,  express  the  life  of  any  body  of  peo- 
ple that  does  not  constitute  a  veritable  community.  Are  the 
United  States  a  community?  In  some  things,  yes;  in  most 
things,  no.  How  impossible  it  is  to  generalize  about  the 
United  States!  If  a  foreign  acquaintance  asks  you  a  ques- 
tion about  America,  are  you  not  obliged  before  replying  to 
say,  " Which  part  of  America  do  you  refer  to?"  It  would 
be  hard  to  frame  any  single  generalization  which  would  be 
true  to  the  whole  United  States,  whether  it  were  social, 
economic,  or  political.  It  is  a  matter  of  despair  to  describe 
a  typical  American.  Types  vary  from  region  to  region,  and 
even  from  state  to  state.  America  abounds  in  the  vitality  of 
variety  and  can  be  summed  up  in  no  formula  either  of  de- 
scription or  of  prophecy. 

Moreover,  she  is  a  country  not  merely  constitutionally  gov- 
erned, but  also  self-governed.  To  look  upon  her  and  com- 
prehend her  is  to  comprehend  the  distinction.  Self-govern- 
ment is  the  last,  the  consummate  stage  of  constitutional  devel- 
opment. Peoples  which  are  not  yet  highly  developed,  self- 
conscious  communities  can  be  constitutionally  governed,  as 
England  was  before  she  had  got  her  full  character  and  knowl- 
edge of  herself,  under  monarchs  who  ruled  her  by  their  own 


20  READINGS  IN  CIVIL  GOVERNMENT 

will,  checked  but  not  governed  by  her  parliament;  but  only 
communities  can  govern  themselves  and  dispense  with  every 
form  of  absolute  authority.  There  is  profound  truth  in  Sir 
Henry  Maine's  remark  that  the  men  who  colonized  America 
and  made  its  governments,  to  the  admiration  of  the  world, 
could  never  have  thus  masterfully  taken  charge  of  their  own 
affairs  and  combined  stability  with  liberty  in  the  process  of 
absolute  self-government  if  they  had  not  sprung  of  a  race 
habituated  to  submit  to  law  and  authority,  if  their  fathers 
had  not  been  the  subjects  of  kings,  if  the  stock  of  which  they 
came  had  not  served  the  long  apprenticeship  of  political  child- 
hood during  which  law  was  law  without  choice  of  their  own. 
Self-government  is  not  a  mere  form  of  institutions,  to  be  had 
when  desired,  if  only  proper  pains  be  taken.  It  is  a  form 
of  character.  It  follows  upon  the  long  discipline  which  gives 
a  people  self-possession,  self-mastery,  the  habit  of  order  and 
peace  and  common  counsel,  and  a  reverence  for  law  which  will 
not  fail  when  they  themselves  become  the  makers  of  law:  the 
steadiness  and  self-control  of  political  maturity.  And  these 
things  cannot  be  had  without  long  discipline. 

The  distinction  is  of  vital  concern  to  us  in  respect  of  prac- 
tical choices  of  policy  which  we  must  make,  and  make  very 
soon.  We  have  dependencies  to  deal  with  and  must  deal  with 
them  in  the  true  spirit  of  our  own  institutions.  We  can  give 
the  Filipinos  constitutional  government,  a  government  which 
they  may  count  upon  to  be  just,  a  government  based  upon 
some  clear  and  equitable  understanding,  intended  for  their 
good  and  not  for  our  aggrandizement ;  but  we  must  ourselves 
for  the  present  supply  that  government.  It  would,  it  is  true, 
be  an  unprecedented  operation,  reversing  the  process  of  Run- 
nymede,  but  America  has  before  this  shown  the  world  en- 
lightened processes  of  politics  that  were  without  precedent. 
It  would  have  been  within  the  choice  of  John  to  summon  his 
barons  to  Runnymede  and  of  his  own  initiative  enter  into  a 
constitutional  understanding  with  them ;  and  it  is  within  our 
choice  to  do  a  similar  thing,  at  once  wise  and  generous,  in 
the  government  of  the  Philippine  Islands.  But  we  cannot 


THE  PRINCIPLES  OF  GOVERNMENT  21 

give  them  self-government.  Self-government  is  not  a  thing 
that  can  be  "given"  to  any  people,  because  it  is  a  form  of 
character  and  not  a  form  of  constitution.  No  people  can  be 
"given"  the  self-control  of  maturity.  Only  a  long  appren- 
ticeship of  obedience  can  secure  them  the  precious  possession, 
a  thing  no  more  to  be  bought  than  given.  They  cannot  be 
presented  with  the  character  of  a  community,  but  it  may 
confidently  be  hoped  that  they  will  become  a  community  un- 
der the  wholesome  and  salutary  influences  of  just  laws  and 
a  sympathetic  administration;  that  they  will  after  a  while 
understand  and  master  themselves,  if  in  the  meantime  they 
are  understood  and  served  in  good  conscience  by  those  set 
over  them  in  authority.  ; 

We  of  all  people  in  the  world  should  know  these  funda- 
mental things  and  should  act  upon  them,  if  only  to  illustrate 
the  mastery  in  politics  which  belongs  to  us  of  hereditary 
right.  To  ignore  them  would  be  not  only  to  fail  and  fail  mis- 
erably, but  to  fail  ridiculously  and  belie  ourselves.  Having 
ourselves  gained  self-government  by  a  definite  process  which 
can  have  no  substitute,  let  us  put  the  peoples  dependent  upon 
us  in  the  right  way  to  gain  it  also. 

5.   THE   ORIGIN   OP   REPRESENTATIVE   GOVERNMENT. 

Popular  government  in  Ancient  Greece  and  Rome  was  realized  by 
the  citizens  coming  together  in  an  assembly  to  discuss  and  vote  upon 
the  measures  submitted  to  them.  At  Rome  this  method  in  time  broke 
down  because  of  the  increase  in  the  number  of  citizens  and  the 
steady  expansion  of  the  territory  in  which  they  resided.  Those 
citizens  living  at  a  distance  from  the  city  were  unable  to  exercise 
their  political  rights  because  they  could  not  go  daily  to  the  Forum 
to  vote.  It  never  occurred  to  the  Roman  citizen  that  he  could  exer- 
cise this  right  by  sending  a  representative  to  act  for  him.  That  was 
an  English  discovery.  How  it  was  discovered  and  how  it  was  trans- 
planted from  England  to  America  is  explained  by  Professor  J.  R. 
Commons : 

The  original  object  which  produced  representative  assem- 
blies was  nationalization.  This  is  shown  in  the  twofold  as- 
pect of  the  union  of  local  governments  into  a  nation,  and  the 


22  READINGS  IN  CIVIL  GOVERNMENT 

coalescence  of  social  classes  in  a  single  representative  assem- 
bly. 

The  English  nation,  from  which  our  representative  institu- 
tions were  inherited,  was  formed  by  welding  together  inde- 
pendent local  communities  into  a  central  organization,  withe 
out  destroying  the  local  governments.  Previous  experiments 
in  nationalization  had  resulted  in  the  tyranny  of  the  capital 
city  and  the  slavery  of  the  provinces.  The  reason  is  plain 
to  every  historical  student,  and  the  same  forces  were  working 
to  the  same  outcome  in  England.  But  the  principle  of  rep- 
resentation, almost  unknown  to  the  ancients,  was  discovered ; 
and  it  permitted  the  unity  of  a  nation,  while  preserving  the 
freedom  of  the  localities. 

The  primitive  idea  of  a  law-making  body  was  the  primary 
assembly  of  all  the  warriors.  The  king  and  his  chief  advisers 
agreed  on  resolutions,  and  offered  them  to  a  simple  yea  and 
nay  vote  of  the  army.  Every  freeman  had  the  right  to  ap- 
pear in  his  own  person  in  the  national  assembly.  After  the 
Norman  conquest  this  right  was  retained  in  theory,  but  aban- 
doned in  practice.  Gradually  only  the  wealthy  land-owners, 
the  tenants  in  chief,  and  the  higher  clergy  appeared.  The  dis- 
tances were  too  great,  the  expense  too  heavy,  and  their  in- 
fluence too  slight,  for  the  small  land-owners  to  continue  at- 
tendance. And  as  for  the  serfs  and  the  town  merchants  and 
artisans,  they  never  had  the  right.  Thus  the  king  and  his 
council  of  magnates  became  the  sole  government  of  England. 
They  enacted  the  laws  and  controlled  their  enforcement.  The 
people  had  no  voice,  neither  were  they  represented. 

Slowly  two  forces  were  at  work.  The  king  gave  away  his 
private  estates,  upon  which  he  was  supposed  to  support  him- 
self and  his  administration,  and  was  therefore  compelled  to 
look  elsewhere  for  funds.  During  the  same  time  the  unrep- 
resented classes  of  small  farmers  and  town  merchants  and 
workmen  were  acquiring  wealth.  The  king  was  forced  to 
ask  them  for  contributions,  or  " subsidies,"  to  help  him  in  his 
wars.  Experience  showed  that  these  aids  could  not  be  se- 
cured by  compulsion.  The  king  must  obtain  the  consent  of 


THE  PRINCIPLES  OF  GOVERNMENT  23 

his  subjects.  Neither  could  their  hearty  consent  and  co-op- 
eration be  obtained  when  they  were  approached  privately 
and  individually.  They  must  have  the  king's  affairs  laid 
before  them  in  assembly,  and  the  state  of  his  exchequer  ex- 
plained. But  a  national  primary  assembly  of  all  the  people 
was  impossible.  However,  there  was  in  existence  the  more 
or  less  well-organized  county  government,  with  a  history  run- 
ning far  back  into  Anglo-Saxon  times.  Here  was  a  con- 
venient primary  assembly  of  all  the  land-owners,  twice  a  year 
at  the  county  seat,  when  the  king's  justices  made  their  circuit. 
Here  the  germs  of  representation  had  appeared  in  the  prac- 
tice of  electing  juries  to  present  the  criminal  matters  of  the 
county  before  the  king's  judges,  and  of  electing  assessors  to 
levy  the  king's  taxes  upon  the  county.  Also  there  was  a  true 
legislative  representation  in  the  practice  of  the  rural  towns 
and  the  boroughs,  which  sent  delegates  to  the  county  courts. 
Very  naturally,  it  occurred  to  the  king  to  ask  this  county 
primary  to  elect  ' '  two  good  and  discreet  knights, ' '  who  should 
represent  the  land-owners  before  him,  and  hear  and  act  upon 
his  demands. 

In  the  towns,  also,  had  quietly  grown  up  the  merchant  and 
craft  guilds,  compact  organizations  of  tradesmen  and  manu- 
facturers, with  mutual  interests  mutually  protected.  When 
the  king  could  no  longer  wring  from  them  money  by  coer- 
cion, he  invited  them  to  send  their  two  accredited  delegates  for 
a  national  gathering  of  guild  representatives. 

What  is  the  significance  of  these  devices  ?  In  ancient  Rome 
the  tax  collectors  swarmed  from  the  imperial  city  with  pro- 
consuls and  armies  at  their  backs,  to  exact  arbitrary  tribute 
from  the  provinces.  Provincial  self-government,  and  with  it 
liberty  and  rights  of  property,  were  destroyed.  In  England 
the  provinces  joined  with  the  central  government,  through 
their  elected  representatives,  in  determining  the  rate  of  taxa- 
tion and  in  assessing  it  to  individuals.  Concessions  in  turn 
were  made  by  the  king,  grievances  were  redressed,  local  self- 
government,  and  with  it  liberty  and  rights  of  property,  were 
maintained. 


24  READINGS  IN  CIVIL  GOVERNMENT 

In  America,  too,  the  problem,  of  representative  government 
has  been  that  of  nationalization.  It  has  passed  three  stages. 
First,  counties  and  towns  were  united  into  colonies;  second, 
colonies  united  in  the  Confederation;  third,  States  formed 
the  nation.  By  the  first,  the  State  legislatures  arose;  by  the 
third,  the  national  Congress. 

Just  as  the  physical  child,  according  to  the  biologists,  re- 
peats in  a  brief  time  its  ancestral  history  of  geological  ages, 
so  did  the  colonies,  the  children  of  English  political  institu- 
tions, repeat  in  a  few  years  the  slow  and  painful  evolution  of 
centuries.  The  stages  are  best  recorded  in  Maryland.  Orig- 
inally the  Constitution,  as  framed  by  the  proprietor,  con- 
sisted of  the  governor,  appointed  by  the  proprietor,  a  council, 
appointed  by  the  governor,  and  a  primary  assembly  of  all  the 
freemen.  At  first  all  could  attend.  But  settlements  ex- 
pended over  a  wide  area.  At  the  second  assembly,  in  1638, 
those  who  could  not  attend  in  person  were  allowed  to  send 
proxies.  But  proxies  were  apparently  bought  up  by  the 
governor  and  his  council  in  order  to  override  the  popular 
wish.  In  1639  the  third  assembly  met.  On  this  occasion  the 
various  "hundreds"  were  instructed  to  elect  representatives. 
Yet,  after  the  election,  one  person,  at  least,  came  forward 
and  claimed  the  right  of  appearing  in  person,  on  the  ground 
that  he  had  voted  in  the  minority  and  so  was  not  represented. 
The  claim  was  allowed.  In  1642  the  assembly  became  typ- 
ically representative  by  excluding  the  proxies  and  those  ap- 
pearing in  their  own  right,  and  limiting  its  membership  to 
those  elected  by  the  localities.  Thus  the  lingering  hope  of 
doing  justice  to  the  unrepresented  minority  was  abandoned. 
But  the  colony  was  united  on  the  basis  of  local  interests. 

In  the  colony  of  Massachusetts  Bay  we  find  again  similar 
conditions  and  a  similar  outcome.  "The  growth  of  fresh 
settlements  brought  with  it  an  expansion  of  the  constitutional 
machinery  of  the  colony.  .  .  .  The  Constitution  of  Mas- 
sachusetts was  older  than  the  existence  of  the  colony.  The 
legislature  of  the  colony  was  simply  the  general  court  of  the 
company  transferred  across  the  Atlantic.  At  the  same  time 


THE  PRINCIPLES  OF  GOVERNMENT  25 

the  dispersal  of  the  settlers  at  once  unfitted  that  body  for 
the  work  of  legislation.  The  remedy  first  applied  to  this 
difficulty  was,  not  to  substitute  a  representative  assembly 
for  a  primary  one,  but  to  limit  the  functions  of  the  court. 
^It  is  clear  that  there  was  an  oligarchical  temper  at  work 
kmong  the  leading  men  in  Massachusetts.  The  action  of 
this  was  plainly  shown  by  the  transfer  of  all  legislative 
rights  from  the  court  of  freemen  to  the  governor,  deputy- 
governor  and  assistants.  At  the  same  time  the  election  of 
the  governor  was  handed  over  from  the  freemen  to  the 
assistants.  .  .  . 

"True  to  English  precedent,  Massachusetts  found  the  sal- 
vation of  her  constitutional  liberties  in  a  question  of  taxa- 
tion. When  the  governor  had  intended  to  change  his 
abode  to  Newtown,  the  assembly  resolved  to  fortify  that  set- 
tlement at  public  charge,  ...  To  meet  the  cost  a  rate 
was  levied  on  each  town  by  order  of  the  governor  and 
assistants.  Against  this  the  men  of  Watertown  protested. 
.  .  .  Though  the  men  of  Watertown  gave  way  on  the 
main  issue,  their  protest  seems  to  have  borne  fruit.  In  the 
next  year  the  powers  of  the  governor  were  formally  defined 
by  an  act.  It  was  also  enacted  by  the  General  Court,  in 
the  following  May,  that  the  whole  body  of  freemen  should 
choose  the  governor,  deputy-governor,  and  assistants.  A 
farther  step  towards  self-government  was  taken  in  the 
resolution ,  that  every  town  should  appoint  two  representa- 
tives to  advise  the  governor  and  assistants  on  the  question 
of  taxation.  We  can  hardly  err  in  supposing  that  this  was 
the  direct  result  of  the  protest  made  by  the  men  of  Water- 
town.  .  .  . 

Other  colonies  passed  through  similar  experiences.  A 
common  form  of  representation  was  developed  in  them  all. 
It  was  exactly  suited  to  the  needs  of  an  independent,  but 
busy  and  scattered  farming  and  land-owning  constituency, 
in  their  efforts  to  combine  and  resist  the  royal  and  oligar- 
chical tendencies  of  the  times. 


26  READINGS  IN  CIVIL  GOVERNMENT 


6.   THE  PEOPLE  VS.   THE  REPRESENTATIVE. 

In  a  representative  democracy  the  question  often  arises,  Should  the 
representative  follow  his  own  knowledge  and  judgment  as  to  what 
the  people  of  his  constituency  need  or  want,  or  should  he,  as  each 
legislative  question  arises,  endeavor  to  learn  the  wishes  of  the  people 
and  act  accordingly?  Mr.  W.  J.  Bryan  has  expressed  himself  on 
this  point  to  the  following  effect:  [1907]. 1 

In  the  presence  of  a  legislative  body  the  question  that 
seems  paramount  to  me  is  the  duty  of  the  legislator,  the 
duty  of  the  representative.  There  are  two  theories  and 
these  theories  will  be  found  wherever  representative  govern- 
ment exists.  One  is  that  the  representative  is  selected  by 
the  people  to  think  for  the  people.  The  other  theory  is  that 
the  representative  is  selected  by  the  people  to  give  legislative 
expression  to  their  thoughts  and  their  will.  Now,  these  are 
the  two  theories  and  much  depends  upon  which  theory  the 
legislator  accepts. 

The  legislator  who  thinks  he  is  chosen  to  think  for  his 
people  may  flatter  his  vanity,  but  he  is  apt  to  be  indifferent 
to  the  wishes  of  those  for  whom  he  speaks.  The  one  who 
believes  that  the  people  think  for  themselves  and  select  him 
to  give  expression  to  their  thoughts  is  apt  to  have  a  more 
modest  opinion  of  himself  but  a  greater  respect  for  those 
for  whom  he  acts.  And  I  hope  you  will  pardon  me  if  I 
give  adhesion  to  the  latter  theory,  and  express  it  as  my  firm 
conviction  that  the  duty  of  the  representative  is  co  represent. 
I  believe  that  this  theory  is  not  only  Democratic  in  a  par- 
tisan sense,  but  Democratic  in  a  broader  sense.  It  is  not 
only  the  theory  Jefferson  entertained,  but  it  is  the  theory 
which  is  entertained  in  this  country  to-day  by  a  large 
majority  of  the  people,  irrespective  of  party  affiliation. 

Governor  Hughes  of  New  York,  in  one  of  his  public  utterances, 
speaking  of  the  abuses  against  which  democracy  has  to  struggle, 
has  taken  a  somewhat  different  view  of  the  question: 

i  Numbers  in  brackets  following  an  introduction  indicate  the  date 
on  which  the  accompanying  selection  was  written. 


THE  PRINCIPLES  OF  GOVERNMENT  27 

To  guard  against  these  abuses  and  put  an  end  to  them 
where  they  exist,  the  people  must  be  constantly  alert.  Faith- 
ful representation  of  the  people  is  of  the  essence  of  the  mat- 
ter. Democracy  on  a  large  scale  would  immediately  fail  were 
not  the  people  to  act  through  their  chosen  representatives. 
It  is  only  upon  simple  and  broad  propositions  of  policy 
that  the  people  can  act  directly.  It  is  difficult  to  procure  a 
complete  understanding,  even  by  those  charged  with  its  con- 
sideration, of  any  complicated  measure. 

These  two  theories  as  to  the  function  of  the  representative,  and 
the  difficulties  that  lie  in  the  way  of  the  representative  who  at- 
tempts to  determine  the  judgment  of  his  constituents  on  particular 
legislative  measures,  are  discussed  by  Mr.  M.  K.  Hart  of  the  New 
York  State  Assembly: 

What  is  "faithful  representation"?  Mr.  Bryan's  wholly 
theoretical  declarations  are  based  upon  the  supposition  that 
the  constituents  of  any  man  elected  to  a  legislature  are  con- 
stantly and  carefully  studying  all  questions  that  come  up, 
and  are  ready,  nay,  anxious,  at  all  times  to  direct  the  repre- 
sentative how  he  shall  vote.  He  tries  to  make  us  believe 
that  a  reliable  if  not  an  exact  opinion  on  each  question  may 
be  obtained  by  the  representative  when  he  appears,  hat  in 
hand,  as  it  were  for  his  instructions. 

He  contributes  nothing  substantial  to  the  solution  of  our 
problem.  In  the  first  place,  the  people  are  indifferent,  tre- 
mendously indifferent,  on  all  except  the  largest  and  most 
important  questions  of  policy.  And  the  difficulty  of  over- 
coming this  is  complicated  by  a  very  common  belief  among 
these  people  that  they  have  no  time  to  be  other  than  indiffer- 
ent. Besides  there  is  still  seen  an  aloofness  from  participa- 
tion in  public  questions  excepting  to  the  extent  of  idle  and 
unintelligent  criticism — an  attitude  harmful  to  the  self-satis- 
fied holder  of  the  opinion,  and  to  the  masses  of  the  peo- 
ple. A  citizen  of  one  of  the  larger  up-state  cities  of  New 
York  was  asked  one  day  last  spring  to  write  his  representa- 
tive in  the  State  Legislature  to  support  a  certain  bill.  He 


28  READINGS  IN  CIVIL  GOVERNMENT 

was  obliged  first  to  ask  the  name  of  the  representative.  A 
newspaper  editor  in  another  city  challenged  his  companion  at 
luncheon  recently  to  name  twenty  men  in  Congress.  He  got 
up  to  fourteen,  stopped,  and  then  in  revenge  bet  the  editor 
he  couldn't  name  ten  more.  And  the  editor  couldn't.  It 
is  probably  a  fact  that  in  a  large  majority  of  the  assembly 
districts  in  the  State  of  New  York  at  the  present  day  not 
five  per  cent,  of  the  voters  know,  or  ever  noticed,  how  their 
representative  voted  on  any  bill  at  the  last  legislative  ses- 
sion, unless  the  bill  were  a  purely  local  measure. 

An  illustration  of  this  came  to  my  notice  last  July — just 
after  the  New  York  State  Legislature  had  adjourned  with- 
out passing  a  direct  primary  bill.  Many  of  the  newspapers 
favored  this  bill  so  strongly  as  to  give  the  impression  to  the 
too  trusting  reader  that  if  enacted  the  law  would  be  an 
inevitable  panacea.  One  newspaper  in  a  county  which  has 
three  members  published  a  leading  editorial  on  the  attitude 
of  those  members  towards  the  bill.  One  member  had  voted 
for  it,  the  second  had  voted  against  it,  and  the  third  had 
" ducked."  This  particular  Journal  denounced  the  man  who 
had  opposed  it,  and,  after  dwelling  upon  his  unfitness  for 
office  as  shown  by  his  action,  closed  by  declaring  that  nine- 
tenths  of  his  constituents  favored  this  bill. 

I  happened  a  few  days  later  to  meet  this  member.  One 
of  the  most  prominent  men  of  the  district  joined  us  as  we 
talked,  and  the  conversation  turned  to  the  editorial.  The 
third  person,  probably  among  the  twenty  most  intelligent 
men  of  the  district — said,  after  listening,  that  he  not  only 
had  not  noticed  how  his  representative  had  voted,  but  had 
not  heard  the  matter  once  mentioned  by  his  neighbors. 

Not  only  is  this  indifference  widespread,  but,  even  in  a 
community  when  there  is  considerable  interest  in  any  bill 
or  resolution,  it  is  almost  impossible,  excepting  on  the 
occasional  issue,  to  find  out  what  the  people  really  want. 
Newspaper  agitation  may  mean  a  great  deal,  or  it  may  mean 
merely  the  influence  of  a  business  interest.  The  old  custom 


THE  PRINCIPLES  OF  GOVERNMENT  29 

of  circulating  a  petition  long  ago  became  so  overdone  that 
a  petition  of  thousands  of  names  may  mean  very  little.  .  .  . 

The  practical  working  out  of  the  relation  between  repre- 
sentative and  people  is  like  that  in  the  case  of  a  manager  of 
a  business  and  the  owner.  If  the  manager  is  worthy  of 
the  place  he  holds,  he  will  have  free  hand  in  the  conduct 
of  all  ordinary  matters,  and  very  likely  will  be  the  strong- 
est influence  in  shaping  the  policy  of  the  business.  The 
owner  will  refrain  from  satisfying  any  passing  desire  he 
may  have  to  show  his  authority  (which,  undoubtedly,  he 
may  make  paramount)  in  the  knowledge  that  all  is  being 
well  done.  And  that  this  is  a  wise  course  is  plain,  for  the 
owner  may  then  give  his  entire  time  to  other  affairs.  The 
owner  of  such  a  business  may  be  one  person,  for  the  pur- 
pose of  our  illustration,  or  there  may  be  several  persons,  or 
perhaps  a  good  many.  The  more  there  are,  the  less  desir- 
able is  it  that  there  should  be  needless  interference  from 
any  of  them,  so  long  as  the  business  is  wisely  conducted; 
though,  of  course,  once  a  year,  or  at  some  other  stated  period, 
the  stockholders  will  demand  opportunity  to  pass  upon  the 
work  done,  and,  by  reappointing  or  dismissing  the  manager 
register  their  approval  or  dissatisfaction.  In  this  simple 
exercise  of  their  absolute  power  the  stockholders  of  the 
modern  business  corporation  secure  best  results.  And  so  can 
it  be  and  should  be  in  regard  to  public  office.  The  analogy 
is  closer  than  at  first  might  seem.  We  have  every  reason  to 
suppose  that  if  the  people  at  the  polls  have  selected  as  their 
representative  the  best  man  they  can  find  to  take  the  place, 
they  may  well  trust  his  judgment  on  whatever  questions 
come  up  for  him  to  decide.  Practical  considerations  forbid 
their  constantly  proffering  advice  and  insisting  upon  its 
being  followed.  They  will  have  opportunity  at  the  next 
election  to  tell  him  whether  he  has  done  well  or  not. 

Governor  Hughes  in  his  Jamestown  speech  showed  an 
appreciation  of  the  real  trouble.  Mr.  Bryan  would  have 
the  legislator  give  heed  to  advice  from  without,  and  care- 


30  READINGS  IN  CIVIL  GOVERNMENT 

fully  refrain  from  using  his  own  brains.  And  as  it  is 
impossible  on  most  questions  to  gauge  public  opinion,  the 
legislator,  in  following  Mr.  Bryan's  direction  would  be  very 
likely  to  be  following  the  dictates  of  that  private  business 
interest  or  political  leader  that  had  most  influence  over  him. 
Mr.  Hughes  well  points  out  that  he  who  heeds  advice,  from 
such  source  is  not  a  faithful  representative  of  the  people.  In 
saying  that  it  is  only  upon  simple  and  broad  propositions 
of  policy  that  the  people  can  act  directly,  he  shows  that 
that  representative  most  truly  represents  who  treats  every 
question  in  the  light  of  the  greatest  good  to  the  greatest 
number  of  people.  In  other  words,  the  greatest  good  will 
result  when  the  representative  brings  to  the  solution  of 
the  problems  before  him  the  greatest  care  and  foresight  and 
ability  that  he  can  muster.  In  so  doing  he  is  recognizing 
his  "  representative  responsibility. " 

ADDITIONAL  READINGS 

1 — The  Ideal  of  the  American  Commonwealth,  Burgess,  J.  W., 

Political  Science  Quarterly,  X,  405-25. 
2— Natural  Law  and  Natural  Rights,   Willoughby,   W.   W., 

The  Nature  of  the  State,  89-111. 
3— Characteristics   of  the   State,    Willoughby,    W.    W.,   The 

American  Constitutional  System,  3-11. 
4 — Government  by  Public  Opinion,  Bryce,  J.,  The  American 

Commonwealth,  II,  255-69. 
5 — The  Social  Basis  of  Proportional  Representation,  Jenks, 

J.,  Annals  of  the  American  Academy  of  Political  and  . 

Social  Science,  1905,  II,  381-96. 


CHAPTER  II 
FORMATION  OF  THE  FEDERAL  CONSTITUTION 

7.    THE  ARTICLES  OF  CONFEDERATION. 

While  the  colonies  were  still  subject  to  England  many  plans  were 
suggested  for  the  establishment  of  an  inter-colonial  union.  One  of 
these,  Franklin's  Plan,  submitted  to  the  Albany  Congress,  1755, 
became  the  model  for  the  Articles  of  Confederation.  These  Articles 
were  drawn  up  by  the  Continental  Congress  soon  after  the  Declara- 
tion of  Independence,  discussed  for  more  than  a  year  before  being 
submitted  to  the  States,  where  nearly  four  years  more  were  spent 
in  securing  their  ratification.  In  spite  of  this  long  and  painful  con- 
sideration, the  Articles  of  Confederation  proved  wholly  inadequate 
as  a  frame  of  government  for  the  States.  Nevertheless  the  pro- 
visions of  this  document  are  worthy  of  study  both  because  of  the 
contrast  and  the  similarity  which  they  offer  to  corresponding  clauses 
in  our  present  Federal  Constitution. 

Articles  of  Confederation  and  Perpetual  Union  between  the 
States  of  New  Hampshire,  Massachusetts  Bay,  Rhode  Island 
and  Providence  Plantations,  Connecticut,  New  York,  New 
Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia,  North 
Carolina,  South  Carolina,  and  Georgia. 

Article  /.—The  style  of  this  Confederacy  shall  be,  "The 
United  States  of  America." 

Art.  II. — Each  State  retains  its  sovereignty,  freedom, 
and  independence,  and  every  power,  jurisdiction,  and  right, 
which  is  not  by  this  Confederation  expressly  delegated  to  the 
United  States  in  Congress  assembled. 

Art.  III. — The  said  States  hereby  severally  enter  into 
a  firm  league  of  friendship  with  each  other,  for  their  com- 
mon defense,  the  security  of  their  liberties,  and  their  mutual 
and  general  welfare,  binding  themselves  to  assist  each 
other  against  all  force  offered  to,  or  attacks  made  upon 

31 


32  READINGS  IN  CIVIL  GOVERNMENT 

them,  or  any  of  them,  on  account  of  religion,  sovereignty, 
trade,  or  any  other  pretense  whatever. 

Art.  IV. — The  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  differ- 
ent States  in  this  Union,  the  free  inhabitants  of  each  of 
these  States,  paupers,  vagabonds,  and  fugitives  from  justice 
excepted,  shall  be  entitled  to  all  privileges  and  immunities 
of  free  citizens  in  the  several  States;  and  the  people  of  each 
State  shall  have  free  ingress  and  egress  to  and  from  any 
other  State,  and  shall  enjoy  therein  all  the  privileges  of 
trade  and  commerce  subject  to  the  same  duties,  impositions, 
and  restrictions  as  the  inhabitants  thereof  respectively; 
provided  that  such  restrictions  shall  not  extend  so  far  as 
to  prevent  the  removal  of  property  imported  into  any  State 
to  any  other  State  of  which  the  owner  is  an  inhabitant; 
provided  also,  that  no  imposition,  duties,  or  restriction  shall 
be  laid  by  any  State  on  the  property  of  the  United 
States  or  either  of  them.  If  any  person  guilty  of,  or  charged 
with,  treason,  felony,  or  other  high  misdemeanor  in  any  State 
shall  flee  from  justice  and  be  found  in  any  of  the  United 
States,  he  shall,  upon  demand  of  the  governor  or  executive 
power  of  the  State  from  which  he  fled,  be  delivered  up  and 
removed  to  the  State  having  jurisdiction  of  his  offense.  Full 
faith  and  credit  shall  be  given  in  each  of  these  States  to  the 
records,  acts,  and  judicial  proceedings  of  the  courts  and 
magistrates  of  every  other  State. 

Art.  V. — For  the  more  convenient  management  of  the 
general  interests  of  the  United  States,  delegates  shall  be  an- 
nually appointed  in  such  manner  as  the  Legislature  of  each 
State  shall  direct,  to  meet  in  Congress  on  the  first  Monday 
in  November,  in  every  year,  with  a  power  reserved  to  each 
State  to  recall  its  delegates,  or  any  of  them,  at  any  time 
within  the  year,  and  to  send  others  in  their  stead  for  the 
remainder  of  the  year.  No  State  shall  be  represented  in 
Congress  by  less  than  two,  nor  by  more  than  seven  mem- 
bers; and  no  person  shall  be  capable  of  being  a  delegate  for 
more  than  three  years  in  any  term  of  six  years;  nor  shall 


FORMATION  OF  THE  CONSTITUTION  33 

any  person,  being  a  delegate,  be  capable  of  holding  any 
office  under  the  United  States  for  which  he,  or  another  for 
his  benefit,  receives  any  salary,  fees,  or  emolument  of  any 
kind.  Each  State  shall  maintain  its  own  delegates  in  any 
meeting  of  the  States  and  while  they  act  as  members  of 
the  Committee  of  the  States.  In  determining  questions  in 
the  United  States  in  Congress  assembled,  each  State  shall 
have  one  vote.  Freedom  of  speech  and  debate  in  Congress 
shall  not  be  impeached  or  questioned  in  any  court  or  place 
out  of  Congress;  and  the  members  of  Congress  shall  be 
protected  in  their  persons  from  arrests  and  imprisonment 
during  the  time  of  their  going  to  and  from,  and  attendance 
on,  Congress,  except  for  treason,  felony,  or  breach  of  the 
peace. 

Art.  VI. — No  State,  without  the  consent  of  the  United 
States,  in  Congress  assembled,  shall  send  any  embassy  to, 
or  receive  any  embassy  from,  or  enter  into  any  conference, 
agreement,  alliance,  or  treaty  with  any  king,  prince,  or  state ; 
nor  shall  any  person  holding  any  office  of  profit  or  trust 
under  the  United  States,  or  any  of  them,  accept  of  any  pres- 
ent, emolument,  office,  or  title  of  any  kind  whatever  from 
any  king,  prince,  or  foreign  state;  nor  shall  the  United 
States,  in  Congress  assembled,  or  any  of  them,  grant  any  title 
of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confed- 
eration, or  alliance  whatever  between  them  without  the  con- 
sent of  the  United  States,  in  Congress  assembled,  specifying 
accurately  the  purposes  for  which  the  same  is  to  be  entered 
into,  and  how  long  it  shall  continue. 

No  state  shall  lay  any  imposts  or  duties  which  may  inter- 
fere with  any  stipulations  in  treaties  entered  into  by  the 
United  States,  in  Congress  assembled,  with  any  king,  prince 
or  state,  in  pursuance  of  any  treaties  already  proposed  by 
Congress  to  the  courts  of  France  and  Spain. 

No  vessel  of  war  shall  be  kept  up  in  time  of  peace  by  any 
State,  except  such  number  only  as  shall  be  deemed  necessary 
by  the  United  States,  in  Congress  assembled,  for  the  de- 

3 


84  READINGS  IN  CIVIL  GOVERNMENT 

fense  of  such  State  or  its  trade,  nor  shall  any  body  of 
forces  be  kept  up  by  any  State  in  time  of  peace,  except 
such  number  only  as,  in  the  judgment  of  the  United  States, 
in  Congress  assembled,  shall  be  deemed  requisite  to  garrison 
the  forts  necessary  for  the  defense  of  such  State;  but  every 
State  shall  always  keep  up  a  well-regulated  and  disciplined 
militia,  sufficiently  armed  and  accoutred,  and  shall  provide 
and  constantly  have  ready  for  use  in  public  stores  a  due 
number  of  field-pieces  and  tents,  and  a  proper  quantity  of 
arms,  ammunition,  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of 
the  United  States,  in  Congress  assembled,  unless  such  State 
be  actually  invaded  by  enemies,  or  shall  have  received  cer- 
tain advice  of  a  resolution  being  formed  by  some  nation  of 
Indians  to  invade  such  State,  and  the  danger  is  so  imminent 
as  not  to  admit  of  a  delay  till  the  United  States,  in  Con- 
gress assembled,  can  be  consulted ;  nor  shall  any  State  grant 
commissions  to  any  ships  or  vessels  of  war,  nor  letters  of 
marque  or  reprisal,  except  it  be  after  a  declaration  of  war 
by  the  United  States,  in  Congress  assembled,  and  then  only 
against  the  kingdom  or  state,  and  the  subjects  thereof, 
against  which  war  has  been  so  declared,  and  under  such 
regulations  as  shall  be  established  by  the  United  States,  in 
Congress  assembled,  unless  such  State  be  infected  by  pirates, 
in  which  case  vessels  of  war  may  be  fitted  out  for  that 
occasion,  and  kept  so  long  as  the  danger  shall  continue,  or 
until  the  United  States,  in  Congress  assembled,  shall  deter- 
mine otherwise. 

Art.  VII. — When  land  forces  are  raised  by  any  State  for 
the  common  defense,  all  officers  of  or  under  the  rank  of 
Colonel  shall  be  appointed  by  the  Legislature  of  each  State 
respectively  by  whom  such  forces  shall  be  raised,  or  in 
such  manner  as  such  State  shall  direct,  and  all  vacancies 
shall  be  filled  up  by  the  State  which  first  made  the  appoint- 
ment. 

Art.  VIII. — All  charges  of  war,  and  all  other  expenses 
that  shall  be  incurred  for  the  common  defense,  or  general 


FORMATION  OF  THE  CONSTITUTION  35 

welfare,  and  allowed  by  the  United  States,  in  Congress 
assembled,  shall  be  defrayed  out  of  a  common  treasury,  which 
shall  be  supplied  by  the  several  States  in  proportion  to  the 
value  of  all  land  within  each  State,  granted  to,  or  surveyed 
for,  any  person,  as  such  land  and  the  buildings  and  improve- 
ments thereon  shall  be  estimated,  according  to  such  mode 
as  the  United  States,  in  Congress  assembled,  shall,  from 
time  to  time,  direct  and  appoint.  The  taxes  for  paying 
that  proportion  shall  be  laid  and  levied  by  the  authority 
and  direction  of  the  Legislatures  of  the  several  States,  within 
the  time  agreed  upon  by  the  United  States,  in  Congress 
assembled. 

Art.  IX. — The  United  States,  in  Congress  assembled, 
shall  have  the  sole  and  exclusive  right  and  power  of  deter- 
mining on  peace  and  war,  except  in  the  cases  mentioned  in 
the  sixth  Article;  of  sending  and  receiving  ambassadors; 
entering  into  treaties  and  alliances,  provided  that  no  treaty 
of  commerce  shall  be  made,  whereby  the  legislative  power 
of  the  respective  States  shall  be  restrained  from  imposing 
such  imposts  and  duties  on  foreigners  as  their  own  people 
are  subjected  to,  or  from  prohibiting  the  exportation  or 
importation  of  any  species  of  goods  or  commodities  whatever ; 
of  establishing  rules  for  deciding,  in  all  cases,  what  cap- 
tures on  land  and  water  shall  be  legal,  and  in  what  manner 
prizes  taken  by  land  or  naval  forces  in  the  service  of  the 
United  States  shall  be  divided  or  appropriated;  of  granting 
letters  of  marque  and  reprisal  in  times  of  peace;  appointing 
courts  for  the  trial  of  piracies  and  felonies  committed  on 
the  high  seas;  and  establishing  courts  for  receiving  and 
determining  finally  appeals  in  all  cases  of  captures;  pro- 
vided that  no  member  of  Congress  shall  be  appointed  a  judge 
of  any  of  the  said  courts. 

The  United  States,  in  Congress  assembled,  shall  also  be 
the  last  resort  on  appeal  in  all  disputes  and  differences 
now  subsisting,  or  that  hereafter  may  arise  between  two  or 
more  States  concerning  boundary,  jurisdiction,  or  any  other 
cause  whatever;  which  authority  shall  always  be  exercised  in 


36  READINGS  IN  CIVIL  GOVERNMENT 

the  manner  following:  Whenever  the  legislative  or  executive 
authority,  or  lawful  agent  of  any  State  in  controversy  with 
another,  shall  present  a  petition  to  Congress,  stating  the 
matter  in  question,  and  praying  for  a  hearing,  notice  thereof 
shall  be  given  by  order  of  Congress  to  the  legislative  or 
executive  authority  of  the  other  State  in  controversy,  and  a 
day  assigned  for  the  appearance  of  the  parties  by  their  law- 
ful agents,  who  shall  then  be  directed  to  appoint,  by  joint 
consent,  commissioners  or  judges  to  constitute  a  court  for 
hearing  and  determining  the  matter  in  question.  .  .  . 

The  United  States,  in  Congress  assembled,  shall  also  have 
the  sole  and  exclusive  right  and  power  of  regulating  the 
alloy  and  value  of  coin  struck  by  their  own  authority,  or  by 
that  of  the  respective  States;  fixing  the  standard  of  weights 
and  measures  throughout  the  United  States;  regulating  the 
trade  and  managing  all  affairs  with  the  Indians,  not  mem- 
bers of  any  of  the  States;  provided  that  the  legislative 
right  of  any  State,  within  its  own  limits,  be  not  infringed 
or  violated;  establishing  and  regulating  post-offices  from  one 
State  to  another,  throughout  all  the  United  States,  and  exact- 
ing such  postage  on  the  papers  passing  through  the  same  as 
may  be  requisite  to  defray  the  expenses  of  the  said  office; 
appointing  all  officers  of  the  land  forces  in  the  service  of  the 
United  States,  excepting  regimental  officers;  appointing  all 
the  officers  of  the  naval  forces,  and  commissioning  all  offi- 
cers whatever  in  the  service  of  the  United  States;  making 
rules  for  the  government  and  regulation  of  the  said  land  and 
naval  forces,  and  directing  their  operations. 

The  United  States,  in  Congress  assembled,  shall  have 
authority  to  appoint  a  committee,  to  sit  in  the  recess  of  Con- 
gress, to  be  denominated  "A  Committee  of  the  States," 
and  to  consist  of  one  delegate  from  each  State,  and  to  appoint 
such  other  committees  and  civil  officers  as  may  be  necessary 
for  managing  the  general  affairs  of  the  United  States 
under  their  direction;  to  appoint  one  of  their  number  to 
preside;  provided  that  no  person  be  allowed  to  serve  in  the 
office  of  president  more  than  one  year  in  any  term  of  three 


FORMATION  OF  THE  CONSTITUTION  37 

years;  to  ascertain  the  necessary  sums  of  money  to  be  raised 
for  the  service  of  the  United  States,  and  to  appropriate  and 
apply  the  same  for  defraying  the  public  expenses;  to  borrow 
money  or  emit  bills  on  the  credit  of  the  United  States, 
transmitting  every  half  year  to  the  respective  States  an 
account  of  the  sums  of  money  so  borrowed  or  emitted;  to 
build  and  equip  a  navy;  to  agree  upon  the  number  of  land 
forces,  and  to  make  requisitions  from  each  State  for  its 
quota,  in  proportion  to  the  number  of  white  inhabitants  in 
such  State,  which  requisition  shall  be  binding;  and  there- 
upon the  Legislature  of  each  State  shall  appoint  the  regimen- 
tal officers,  raise  the  men,  and  clothe,  arm,  and  equip  them 
in  a  soldier-like  manner,  at  the  expense  of  the  United  States ; 
and  the  officers  and  men  so  clothed,  armed,  and  equipped  shall 
march  to  the  place  appointed,  and  within  the  time  agreed 
on  by  the  United  States,  in  Congress  assembled;  but  if  the 
United  States,  in  Congress  assembled,  shall,  on  consideration 
of  circumstances,  judge  proper  that  any  State  should  not 
raise  men,  or  should  raise  a  smaller  number  than  its  quota, 
and  that  any  other  State  should  raise  a  greater  number  of 
men  than  the  quota  thereof,  such  extra  number  shall  be 
raised,  officered,  clothed,  armed,  and  equipped  in  the  same 
manner  as  the  quota  of  such  State,  unless  the  Legislature  of 
such  State  shall  judge  that  such  extra  number  can  not  be 
safely  spared  out  of  the  same,  in  which  case  they  shall  raise, 
officer,  clothe,  arm  and  equip  as  many  of  such  extra  number 
as  they  judge  can  be  safely  spared,  and  the  officers  and  men 
so  clothed,  armed,  and  equipped  shall  march  to  the  place 
appointed,  and  within  the  time  agreed  on  by  the  United 
States,  in  Congress  assembled. 

The  United  States,  in  Congress  assembled,  shall  never 
engage  in  a  war,  nor  grant  letters  of  marque  and  reprisal 
in  time  of  peace,  nor  enter  into  any  treaties  or  alliances, 
nor  coin  money,  nor  regulate  the  value  thereof,  nor  ascer- 
tain the  sums  and  expenses  necessary  for  the  defense  and 
welfare  of  the  United  States,  or  any  of  them,  nor  emit  bills, 
nor  borrow  money  on  the  credit  of  the  United  States,  nor 


38  READINGS  IN  CIVIL  GOVERNMENT 

appropriate  money,  nor  agree  upon  the  number  of  vessels 
of  war  to  be  built  or  purchased,  or  the  number  of  land  or 
sea  forces  to  be  raised,  nor  appoint  a  commander-in-chief  of 
the  army  or  navy,  unless  nine  States  assent  to  the  same,  nor 
shall  a  question  on  any  other  point,  except  for  adjourning 
from  day  to  day,  be  determined,  unless  by  the  votes  of  a 
majority  of  the  United  States,  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  ad- 
journ to  any  time  within  the  year,  and  to  any  place  within  the 
United  States,  so  that  no  period  of  adjournment  be  for 
a  longer  duration  than  the  space  of  six  months,  and  shall 
publish  the  journal  of  their  proceedings  monthly,  except  such 
parts  thereof  relating  to  treaties,  alliances,  or  military  opera- 
tions as  in  their  judgment  require  secrecy;  and  the  yeas  and 
nays  of  the  delegates  of  each  State,  on  any  question,  shall  be 
entered  on  the  journal  when  it  is  desired  by  any  delegate; 
and  the  delegates  of  a  State,  or  any  of  them,  at  his  or  their 
request,  shall  be  furnished  with  a  transcript  of  the  said 
journal  except  such  parts  as  are  above  excepted,  to  lay  be- 
fore the  Legislatures  of  the  several  States. 

Art.  X. — The  Committee  of  the  States,  or  any  nine  of 
them,  shall  be  authorized  to  execute,  in  the  recess  of  Con- 
gress, such  of  the  powers  of  Congress  as  the  United  States, 
in  Congress  assembled,  by  the  consent  of  nine  States,  shall, 
from  time  to  time,  think  expedient  to  vest  them  with;  pro- 
vided that  no  power  be  delegated  to  the  said  Committee,  for 
the  exercise  of  which,  by  the  Articles  of  Confederation,  the 
voice  of  nine  States  in  the  Congress  of  the  United  States 
assembled  is  requisite. 

Art.  XL — Canada,  acceding  to  this  Confederation,  and 
joining  in  the  measures  of  the  United  States,  shall  be  ad- 
mitted into,  and  entitled  to  all  the  advantages  of  this  Union ; 
but  no  other  colony  shall  be  admitted  into  the  same,  unless 
such  admission  be  agreed  to  by  nine  States. 

Art.  XII. — All  bills  of  credit  emitted,  moneys  borrowed, 
and  debts  contracted  by  or  under  the  authority  of  Congress, 
before  the  assembling  of  the  United  States,  in  pursuance  of 


FORMATION  OF  THE  CONSTITUTION  39 

the  present  Confederation,  shall  be  deemed  and  considered 
as  a  charge  against  the  United  States,  for  payment  and 
satisfaction  whereof  the  said  United  States  and  the  public 
faith  are  hereby  solemnly  pledged. 

Art.  XIII. — Every  State  shall  abide  by  the  determinations 
of  the  United  States,  in  Congress  assembled,  on  all  questions 
which  by  this  Confederation  are  submitted  to  them.  And 
the  Articles  of  this  Confederation  shall  be  inviolably  observed 
by  every  State,  and  the  Union  shall  be  perpetual;  nor  shall 
any  alteration  at  any  time  hereafter  be  made  in  any  of  them, 
unless  such  alteration  be  agreed  to  in  a  Congress  of  the 
United  States,  and  be  afterwards  confirmed  by  the  Legisla- 
tures of  every  State. 

8.   DEFECTS  IN  THE  AETICLES  OF  CONFEDERATION. 

(a)  The  Articles  of  Confederation  had  hardly  gone  into  opera- 
tion before  attempts  were  made  to  amend  them.  Some  of  these 
amendments  were  urged  upon  the  States  again  and  again  by  Ham- 
ilton and  Madison  with  the  most  convincing  arguments  for  their 
necessity,  yet  none  were  adopted  because  of  the  requirement  that 
any  change  in  the  Articles  should  be  ratified  by  every  State.  Never- 
theless they  "are  of  the  highest  interest  as  evidence  of  the  defects 
of  the  Articles  recognized  thus  early  in  their  history  and  as  imme- 
diate precedents  for  provisions  soon  after  inserted  in  the  Constitu- 
tion." l  On  August  22,  1781,  before  the  Articles  had  been  in  oper- 
ation six  months,  Congress  adopted  the  following  report: 

That,  as  America  became  a  confederate  republic  to  crush 
the  present  and  future  foes  of  her  independence; 

As  of  this  republic  a  general  council  is  a  necessary  organ ; 

And  without  the  extension  of  its  power  in  the  cases  here- 
inafter enumerated  war  may  receive  a  fatal  inclination  and 
peace  be  exposed  to  daily  convulsions: 

It  be  resolved  to  recommend  to  the  several  states  to 
authorize  your  the  United  States  in  Congress  assembled — 

1.  To  lay  embargoes  in  time  of  war  without  any  limitation. 

2.  To   prescribe    rules   for   impressing   property   into   the 
service  of  the  United  States  during  the  present  war. 

i  Thorpe,  Constitutional  History  of  the  United  States,  I,  276. 


40  READINGS  IN  CIVIL  GOVERNMENT 

t 

3.  To  appoint  the  collectors  of  and  direct  the  mode  of 
accounting  for  taxes  imposed  according  to  the  requisitions  of 
Congress. 

4.  To  recognize  the  independence  of  and  admit  into  the 
federal  union  any  part  of  one  or  more  of  the  United  States 
with  the  consent  of  the  dismembered  state. 

5.  To  stipulate   in  treaties  with   foreign  nations   for  the 
establishment  of  consular  power,  without  reference  to  the 
states  individually. 

6.  To  distrain  the  property  of  a  state  delinquent  in  its 
assigned  proportion  of  men  and  money. 

7.  To  vary  the  rules  of  suffrage  in  Congress,  taking  care 
that  in  questions  for  waging  war,  granting  letters  of  marque 
and  reprisal  in  time  of  peace,  concluding  or  giving  instruc- 
tions for  any  alliance,  coining  money,  regulating  the  value 
of  coin,  determining  the  total  number  of  land  and  sea  forces, 
and    allotting   to   each   state    its  quota   of   men    or   money, 
emitting  bills  of  credit,  borrowing  money,  fixing  the  number 
and  force  of  vessels  of  war,  and  appointing  a  commander-in- 
chief  of  the  army  and  navy — at  least  two-thirds  of  the  United 
States  shall  agree  therein. 

Resolved,  That  a  committee  be  appointed  to  prepare  a 
representation  to  the  several  states  of  the  necessity  of  these 
supplemental  powers,  and  of  pursuing,  in  the  modification 
thereof,  one  uniform  plan. 

(b)  The  most  serious  difficulty  that  confronted  Congress  was  the 
raising  of  a  revenue  to  defray  the  expenses  of  government  and  dis- 
charge the  interest  on  the  public  debt.  The  requisition  system  broke 
down  completely.  On  October  30,  1781,  Congress  asked  for  eight 
million  dollars;  by  January,  1783,  less  than  half  a  million  had  been 
received.  Of  six  million  called  for  between  1782  and  1786  only  one 
million  was  paid.  In  1787  New  Jersey  not  merely  neglected  but 
positively  refused  to  raise  any  part  of  the  amount  apportioned  to 
her.  To  remedy  this  situation  two  revenue  amendments  were  sub- 
mitted to  the  states.  The  first  of  these,  February  3,  1781,  was  as 
follows : 

Resolved,  That  it  be  recommended  to  the  several  states  as 


FORMATION  OF  THE  CONSTITUTION  41 

indispensably  necessary,  that  they  vest  a  power  in  Congress 
to  levy,  for  the  use  of  the  United  States,  a  duty  of  five  per 
cent,  ad  valorem,  at  the  time  and  place  of  importation,  upon 
all  goods,  wares,  and  merchandise,  of  foreign  growth  and 
manufacture,  which  may  be  imported  into  any  of  the  said 
states  from  any  foreign  port,  island,  or  plantation,  after  the 
1st  day  of  May,  1781 ;  except  arms,  ammunition,  clothing  and 
other  articles  imported  on  account  of  the  United  States,  or 
any  of  them;  and  except  wool  cards  and  cotton  cards,  and 
wire  for  making  them;  and  also  except  salt,  during  the  war. 

Also  a  like  duty  of  five  per  cent,  on  all  prizes  and  prize 
goods,  condemned  in  the  court  of  admiralty  of  any  of  these 
states  as  lawful  prize. 

That  the  moneys  arising  from  the  said  duties  be  appropri- 
ated to  the  discharge  of  the  principal  and  interest  of  the 
debts  already  contracted,  or  which  may  be  contracted,  on  the 
faith  of  the  United  States,  for  supporting  the  present  war. 

That  the  said  duties  be  continued  until  the  said  debts  shall 
be  fully  and  finally  discharged. 

(c)  This  amendment  received  the  assent  of  all  the  states  except 
Rhode  Island,  which  made  the  following  objections  to  it: 

1st.  That  the  proposed  duty  would  be  unequal  in  its  opera- 
tion, bearing  hardest  upon  the  most  commercial  states,  and 
it  would  press  peculiarly  hard  upon  that  state  which  draws 
its  chief  support  from  commerce. 

2nd.  That  the  recommendation  proposes  to  introduce  into 
that  and  the  other  states  officers  unknown  and  unaccount- 
able to  them  and  so  is  against  the  Constitution  of  the  state. 

3rd.  That  by  granting  to  Congress  a  power  to  collect 
moneys  from  the  commerce  of  these  states,  indefinitely  as  to 
time  and  quantity,  and  for  the  expenditure  of  which  they 
are  not  to  be  accountable  to  the  states  they  would  become 
independent  of  their  constituents ;  and  so  the  proposed  import 
is  repugnant  to  the  liberty  of  the  United  States. 

(d)  A  lengthy  reply  to  these  objections  was  drawn  up  by  Ham- 
ilton in  closing  which  he  spoke  as  follows: 


42  READINGS  IN  CIVIL  GOVERNMENT 

It  is  certainly  pernicious  to  leave  any  government  in  a 
situation  of  responsibility  disproportioned  to  its  power. 

The  conduct  of  the  war  is  intrusted  to  Congress,  and  the 
public  expectation  turned  upon  them,  without  any  compe- 
tent means  at  their  command  to  satisfy  the  important  trust. 
After  the  most  full  and  solemn  deliberation,  under  a  collec- 
tive view  of  all  the  public  difficulties,  they  recommend  a 
measure  which  appears  to  them  the  corner-stone  of  the  public 
safety;  they  see  this  measure  suspended  for  near  two  years; 
partially  complied  with  by  some  of  the  states;  rejected  by 
one  of  them,  and  in  danger,  on  that  account,  to  be  frustrated ; 
the  public  embarrassments  every  day  increasing;  the  dissatis- 
faction of  the  army  growing  more  serious;  the  other  credit- 
ors of  the  public  clamoring  for  justice;  both  irritated  by 
the  delay  of  measures  for  their  present  relief  or  future 
security;  the  hopes  of  our  enemies  encouraged  to  protract 
the  war;  the  zeal  of  our  friends  depressed  by  an  appearance 
of  remissness  and  want  of  exertion  on  our  part;  Congress 
harassed;  the  national  character  suffering,  and  the  national 
safety  at  the  mercy  of  events.1 

(e)  Another  serious  weakness  of  the  Articles  was  their  failure 
to  give  Congress  exclusive  control  of  foreign  commerce.  So  great 
had  the  inconvenience  from  this  source  become  by  April,  1784,  that 
the  following  report  was  adopted  by  Congress: 

The  trust  reposed  in  Congress  renders  it  their  duty  to  be 
attentive  to  the  conduct  of  foreign  nations,  and  to  prevent 
or  restrain,  as  far  as  may  be,  all  such  proceedings  as  might 
prove  injurious  to  the  United  States.  The  situation  of  com- 
merce at  this  time  claims  the  attention  of  the  several  states, 
and  few  objects  of  greater  importance  can  present  them- 
selves to  their  notice.  The  fortune  of  every  citizen  is  inter- 
ested in  the  success  thereof;  for  it  is  the  constant  source  of 

i  This  reply  was  sent  out  to  the  States  with  the  second  revenue  amend- 
ment in  1783  which  was  so  drawn  as  to  obviate  as  far  as  possible  Rhode 
Island's  objections  to  the  first.  These  papers  were  accompanied  by  an 
able  Address  to  the  States  on  the  condition  of  the  revenue,  also  by 
Hamilton.  Nevertheless,  New  York  this  time  refused  to  ratify. 


FORMATION  OF  THE  CONSTITUTION  43 

wealth  and  incentive  to  industry;  and  the  value  of  our  pro- 
duce and  our  land,  must  ever  rise  or  fall  in  proportion  to  the 
prosperous  or  adverse  state  of  trade. 

Already  has  Great  Britain  adopted  regulations  destructive 
of  our  commerce  with  her  West  India  Islands.  There  was 
reason  to  expect  that  measures  so  unequal,  and  so  little  calcu- 
lated to  promote  mercantile  intercourse,  would  not  be  perse- 
vered in  by  an  enlightened  nation.  But  these  measures  are 
growing  into  a  system.  It  would  be  the  duty  of  Congress, 
as  it  is  their  wish,  to  meet  the  attempts  of  Great  Brit- 
ain with  similar  restrictions  on  her  commerce;  but  their 
powers  on  this  head  are  not  explicit,  and  the  propositions 
made  by  the  legislatures  of  the  several  states  render  it  neces- 
sary to  take  the  general  sense  of  the  Union  on  this  subject. 

Unless  the  United  States  in  Congress  assembled  shall  be 
vested  with  powers  competent  to  the  protection  of  com- 
merce, they  can  never  command  reciprocal  advantages  in 
trade ;  and  without  these,  our  foreign  commerce  must  decline, 
and  eventually  be  annihilated.  Hence  it  is  necessary  that 
the  states  should  be  explicit,  and  fix  on  some  effectual  mode 
by  which  foreign  commerce  not  founded  on  principles  of 
equality  may  be  restrained. 

That  the  United  States  may  be  enabled  to  secure  such  terms, 
they  have 

Resolved,  That  it  be,  and  it  hereby  is,  recommended  to 
the  legislatures  of  the  several  states,  to  vest  the  United 
States  in  Congress  assembled,  for  the  term  of  fifteen  years, 
with  power  to  prohibit  any  goods,  wares,  or  merchandise, 
from  being  imported  into,  or  exported  from,  any  of  the 
states,  in  vessels  belonging  to,  or  navigated  by,  the  subjects 
of  any  power  with  whom  these  states  shall  not  have  formed 
treaties  of  commerce. 

Resolved,  That  it  be,  and  it  hereby  is,  recommended  to 
the  legislatures  of  the  several  states,  to  vest  the  United  States 
in  Congress  assembled  for  the  term  of  fifteen  years,  with 
the  power  of  prohibiting  the  subjects  of  any  foreign  state, 
kingdom,  or  empire,  unless  authorized  by  treaty,  from  im- 


44  READINGS  IN  CIVIL  GOVERNMENT 

porting  into  the  United  States  any  goods,  wares,  or  mer- 
chandise, which  are  not  the  produce  or  manufacture  of  the 
dominions  of  the  sovereign  whose  subjects  they  are. 

Provided,  That  to  all  acts  of  the  United  States  in  Con- 
gress assembled,  in  pursuance  of  the  above  powers,  the  assent 
of  nine  states  shall  be  necessary. 

9.   THE  RATIFICATION  OF  THE  CONSTITUTION. 

No  more  momentous  question  has  ever  come  before  the  people 
of  the  United  States  for  decision  than  that  presented  when  the  work 
of  the  Federal  Convention  was  submitted  for  their  approval  or  re- 
jection. The  evil  consequences  which  were  likely  to  have  followed 
upon  the  adoption  of  the  latter  alternative  and  the  good  results 
which  have  flowed  from  the  acceptance  of  the  first,  now  seem  to 
weigh  as  an  overwhelming  argument  for  the  ratification  of  the  Con- 
stitution. Nevertheless  the  struggle  in  the  several  State  conventions 
was  long  and  bitter.  In  none  was  the  contest  waged  more  fiercely 
nor  the  issue  held  longer  in  doubt  than  in  New  York,  where  the 
Federalists  were  led  by  Alexander  Hamilton  and  the  Anti-Federalists 
by  Governor  George  Clinton.  Mr.  Judson  Landon  has  thus  sum- 
marized the  arguments  of  these  protagonists :  x 

We  do  not  oppose  a  Union ;  indeed,  we  desire  one,  said  the 
Anti-Federalists;  we  have  one  under  the  Articles  of  Con- 
federation; defective,  we  grant;  not  in  its  principles,  but 
somewhat  so  in  the  details  of  execution.  We  are  willing  to 
amend  these  so  as  to  allow  Congress  to  levy  and  collect  the 
tax  to  meet  its  requisitions,  if  the  state  should  not  voluntarily 
pay  them.  Why  ask  for  more?  Why  make  this  untried 
experiment  of  a  great  central  government,  acting  directly 
upon  the  people,  and  compelling  both  states  and  people  to 
yield  obedience  to  laws  which  are  to  be,  in  the  execution  of 
the  powers  conferred,  the  supreme  law  of  the  land,  any  state 
law  or  act  to  the  contrary  notwithstanding?  Then,  when 
there  are  any  disputes  as  to  whether  the  nation  or  the  state 
has  the  right  to  act,  the  national,  not  the  state,  court  has  the 
right  to  decide,  and  our  fears  tell  us  how  that  decision  will 
always  be  made.  You  are  creating  a  great  central  power, 
which,  if  it  desires  so  to  encroach  upon  the  rights  of  the  states 

i  Reprinted  by  special  permission  of  Houghten,  Mifflin  and  Company. 


FORMATION  OF  THE  CONSTITUTION  45 

as  practically  to  destroy  them,  needs  only  to  declare  that  it  is 
necessary  to  do  so  in  order  to  carry  into  execution  the  power 
conferred  upon  it ;  then,  if  its  court  decide  that  it  is  right,  the 
destruction  is  complete,  unless  we  can  take  up  arms  to  defend 
ourselves;  and  we  cannot  defend  ourselves,  first,  because  the 
United  States  may  take  our  able-bodied  men  to  recruit  its 
army ;  and,  second,  because  it  has  an  unlimited  power  of  taxa- 
tion for  necessary  purposes ;  and  if  the  United  States  compel 
payment  of  the  taxes  which  it  may  decide  necessary  to  levy 
upon  us,  we  shall  have  nothing  left  for  state  purposes,  and 
cannot  even  support  our  troops,  if  we  have  the  men  left  from 
whom  to  recruit  them.  How  do  we  know  that  your  President 
will  not  make  himself  king  ?  In  the  United  Netherlands,  once 
its  chief  magistrates  were  elective,  now  they  are  hereditary. 
The  Venetians,  once  a  republic,  are  now  governed  by  an  aris- 
tocracy. History  furnishes  no  example  of  a  confederated  re- 
public coercing  the  states  composing  it  by  the  influence  of 
laws  operating  upon  the  individuals  of  those  states.  Your 
experiment  is  without  precedent  or  example.  It  is  false  in 
principle,  for  there  cannot  be  two  supreme  powers  over  one 
individual,  namely,  the  governments  of  the  state  and  of  the 
United  States.  No  man  can  obey  two  masters.  Your  country 
is  too  vast  in  extent  to  be  governed  by  one  power.  You  create 
a  national  legislature  who  may  vote  their  own  pay,  without 
limitation ;  who  are  too  few  in  number  to  represent  the  people 
—New  York  having  only  six ;  and  who  are  in  nowise  amenable 
to  the  state :  what  security  have  we  against  their  combinations 
against  our  liberties,  and  their  corruption  in  squandering  the 
contributions  they  extort  from  us?  Why  give  the  South  in- 
creased representation  because  of  the  slave?  Do  you  wish 
to  compel  us  to  sanction  slavery  ?  Representation  implies  the 
free  agency  of  the  persons  represented;  the  slave  cannot  be 
represented,  because  he  is  not  a  free  agent ;  and  it  is  false  in 
principle  to  give  his  master  double  representation,  once  on 
his  own  account,  and  then  again  upon  account  of  his  wrong 
to  another.  And  small  as  our  representation  is,  Congress  may 
reduce  it;  for  the  provision  is,  the  representatives  shall  not 


46  READINGS  IN  CIVIL  GOVERNMENT 

exceed  one  for  every  thirty  thousand,  but  it  does  not  say  that 
it  may  not  take  twice,  or  many  times  thirty  thousand  to  be  en- 
titled to  one.  We  prefer  more  than  six;  the  more,  the  better 
we  are  represented,  and  the  less  risk  of  corruption.  The  rep- 
resentatives should  be  chosen  every  year,  instead  of  every  two 
years;  six  years  as  the  term  of  senator  is  much  too  long;  the 
government  will  fall  into  the  hands  of  the  few  and  the  great ; 
it  is  not  a  government  of  the  people;  it  is  in  everything  too 
far  removed  from  the  people,  and  must  inevitably  become  a 
government  of  oppression ;  not  perhaps  immediately,  but  grad- 
ually, by  construction,  and  by  amplification  of  jurisdiction 
and  power.  This  may  be  slow,  it  may  be  almost  impercepti- 
ble; but  knowing  the  natural  tendency  of  human  nature  to 
hold  power  when  once  gained,  and  to  extend  it  when  its  grati- 
fications have  been  experienced,  we  plainly  see  that  the  states 
are  to  fall  beneath  the  United  States,  and  the  people  will  be 
crushed  beneath  a  government  too  remote  to  hear  their  voice, 
and  too  well  assured  of  its  own  power  and  permanency  to 
heed  it.  True,  the  Constitution  assumes  to  guarantee  to  every 
state  a  republican  form  of  government ;  alas,  for  the  substance, 
when  the  form  only  remains!  .  .  . 

Hamilton  and  his  associates  replied:  The  radical  vice  in 
the  Articles  of  Confederation  is  that  the  laws  of  the  Union 
apply  to  the  states  only  in  their  corporate  capacity.  Our 
misfortunes  proceed  from  a  want  of  vigor  in  the  continental 
government.  New  York  and  Pennsylvania  are  the  only  states 
that  have  fully  complied  with  the  federal  requisitions.  New 
Hampshire,  which  has  not  suffered  from  the  war,  is  totally 
delinquent.  So  is  South  Carolina.  The  other  states  have 
only  partly  complied.  Suppose  we  amend  the  Articles  as 
proposed,  giving  the  nation  power  to  compel  the  state  to  com- 
ply with  the  requisitions.  That  may  mean  war  against  a  hos- 
tile state.  Do  you  mean  that  ?  If  the  state  refuse  to  comply, 
how  is  the  nation  to  proceed  against  such  a  hostile  state  ?  If 
you  confer  the  full  and  unlimited  power  of  taxation,  and  also 
control  of  the  army,  upon  Congress,  you  establish  a  despotism, 
the  meaning  of  which  word  is,  all  power  in  one  body.  You 


FORMATION  OF  THE  CONSTITUTION  47 

are  afraid  to  trust  the  representatives  of  the  people.  You 
can  have  no  government  of  your  own  unless  you  trust  some- 
body. Some  confidence  in  our  fellows  is  the  basis  of  human 
society.  Unless  you  will  trust  your  kind,  you  are  divided  by 
anarchy,  and  are  become  the  spoil  of  the  strongest.  But  there 
are  provided  all  reasonable  checks.  There  are  three  depart- 
ments of  government,  each  a  check  upon  the  other.  The 
President  is  the  representative  of  the  people.  He  can  veto 
bad  laws.  So  the  two  houses  are  checks  upon  each  other; 
and  these  failing,  there  sits  the  court,  appointed  for  life,  re- 
moved from  the  passion  of  the  partisan,  and  with  no  induce- 
ment but  to  do  justice.  You  elect  your  own  representatives; 
these  will  be  in  positions  of  honor,  and  if  not  honorably  filled, 
you  will  send  others  in  their  place.  Besides,  the  President 
and  judges  may  be  impeached  for  wrong-doing.  But  human 
selfishness  and  ambition  also  are  your  safeguards.  The  public 
servant  is  under  the  eye  of  the  public,  a  public  quick  to  see, 
and  prompt  to  strike  dead  the  madness  of  tyranny  and  cor- 
ruption. What  reasonable  precaution  is  omitted  ?  Your  coun- 
try is  too  large  to  admit  of  a  pure  democracy,  wherein  all  the 
people  assemble,  deliberate,  and  decide.  You  must  from  ne- 
cessity be  represented,  and  better  so ;  for  men  may  be  incapa- 
ble of  public  affairs  and  yet  choose  one  of  their  number  to 
represent  them  who  is  capable.  And  so  a  representative 
government  is  the  best.  The  ancient  democracies,  in  which 
the  people  themselves  deliberated,  never  possessed  one  feature 
of  good  government.  Their  character  was  tyranny,  their 
figure  deformity.  Their  assemblies  were  mobs ;  the  field  of  de- 
bate was  the  theatre  of  enormity,  of  mad  ambition,  of  blood- 
shed; it  was  matter  of  chance  whether  the  people  were  blindly 
led  by  one  tyrant  or  another.  You  want  more  representatives. 
The  ratio  is  one  to  thirty  thousand ;  you  want  it  one  to  twenty 
thousand.  We  cannot  argue  with  your  emotions,  but  may  not 
one  man  understand  the  interests  of  thirty  as  well  as  of 
twenty?  Remember  that  he  will  not  represent  all  your  in- 
terests, but  only  those  of  federal  concern.  These  are  princi- 
pally commerce  and  taxation.  Are  these  questions  generally 


48  READINGS  IN  CIVIL  GOVERNMENT 

understood  by  many,  or  by  few?  The  people  may  choose 
whom  they  please,  and  we  hope  they  will  choose  their  best. 
Suppose  they  choose  the  bad ;  they  must  conform  to  the  scheme 
of  the  Constitution,  and  if  that  is  wise  and  good,  we  may  yet 
enjoy  good  government  from  bad  men.  Bad  grain  does  not 
grow  from  good  seed,  though  the  wicked  sow  it.  We  hope  that 
the  popular  elections  will  be  pure,  and  unbounded  liberty  of 
choice  allowed.  Public  opinion  will  be  a  great  element  of 
safety.  Your  state  government  will,  by  their  watchfulness 
and  jealousy  of  federal  encroachment,  be  a  check  upon  it. 
The  national  and  the  state  governments  have  their  respective 
spheres;  each  will  hold  the  other  to  its  place,  and  the  two, 
thus  related,  form  a  double  security  to  the  people.  Surely, 
if  you  can  appeal  to  the  nation  againart  the  injustice  of  your 
state;  if  you  can  ask  your  state  to  interpose  against  the  injus- 
tice of  the  nation,  you  will,  indeed,  be  fortunate.  We  predict 
that  the  national  government  will  be  as  natural  a  guardian 
of  our  freedom  as  the  states  themselves.  But  how  open  to 
corruption  is  the  confederate  Congress!  Each  state  has  one 
vote ;  nine  states  must  concur  in  the  most  important  measures. 
Suppose  nine  states  present,  and  a  foreign  enemy  bribes  the 
two  delegates  who  represent  one  state.  The  other  eight  are 
instantly  paralyzed,  and  the  measure  thwarted  which  may  be 
essential  to  your  national  existence.  What  a  difference  be- 
tween the  old  and  the  new!  The  old  was  made  of  rotten 
materials  put  together  in  haste.  The  new  government  will 
not  encroach  upon  the  just  powers  of  the  state.  Does  it  re- 
model the  internal  police  of  any  state?  No.  Does  it  alter 
or  abrogate  any  of  its  civil  or  criminal  institutions?  No. 
Any  of  its  forms  or  safeguards  of  justice?  No.  Does  it  af- 
fect the  domestic  or  private  life  of  any  citizen?  No.  Does 
it  ask  the  state  to  surrender  any  power  or  function  essential  to 
its  welfare  ?  No.  The  declared  object  of  the  new  government 
is  to  insure  domestic  tranquillity,  provide  for  the  common  de- 
fence, and  promote  the  general  welfare.  How  is  it  to  be  done  ? 
Not  in  the  least  by  taking  away  any  of  the  safeguards  or 


FORMATION  OF  THE  CONSTITUTION  49 

means  by  which  every  state  may  now  compass  these  blessed  ob- 
jects, but  by  strengthening  those  safeguards  and  means  by 
the  added  power  of  all  the  other  states ;  not  separately,  either, 
in  their  capacity  as  states,  but  by  the  union  of  all  the  people 
who  dwell  therein.  The  allotment  of  representatives  in  pro- 
portion to  the  population,  the  inclusion  of  three-fifths  of  the 
slaves  in  ascertaining  the  people  to  be  represented,  the  ex- 
emption of  exports  from  taxation,  the  non-interference  with 
the  importation  of  slaves  until  1808,  the  imposition  of  a  tax 
upon  slaves  imported,  were  matters  of  accommodation,  agreed 
to  in  order  to  secure  the  assent  of  the  states  more  especially 
benefited  by  these  provisions.  You  may,  indeed,  discuss  them 
upon  their  merits,  and  possibly  condemn  them ;  but  the  states 
which  insisted  upon  them  as  important  are  not  here  to  per- 
suade or  reply  to  you ;  unless  you  respect  the  accommodation, 
it  is  in  vain  to  remind  you  that  to  some  of  the  states  equality 
in  the  Senate  and  power  in  Congress  to  regulate  commerce,  to 
make  navigation  laws,  to  impose  taxes  upon  imports,  to  exer- 
cise any  power  with  respect  to  the  slave,  were  conceded  in  the 
same  spirit  of  compromise.  It  is  easier  to  calculate  the  evils 
than  the  advantages  of  a  measure,  and  we  can  only  deprecate 
that  appeal  to  the  passions  which  creates  a  prejudice  fatal 
to  deliberate  examination.  We  have  sought  to  equalize  the 
power  of  the  states;  to  balance  the  departments  of  the  gov- 
ernment ;  to  lodge  the  sword  in  one  department  and  the  purse 
in  another ;  to  connect  the  virtue  of  the  rulers  with  their  in- 
terests; to  make  the  Union  dependent  upon  the  states  for  its 
executive  and  senate;  to  make  the  states  independent  of  the 
Union,  except  in  those  matters  of  highest  concern  to  the 
safety,  protection,  and  benefit  of  all.  We  thought  it  right 
that  the  Union,  in  the  exercise  of  these  powers  of  high  con- 
cern, should  not  be  impeded  or  trammelled  by  the  interposi- 
tion of  the  state.  Such  powers  may  not  be  efficiently  used 
when  most  urgently  needed,  unless  they  are  completely  and 
supremely  held.  The  members  of  the  Union  will  be  stronger 
than  the  head;  the  number  of  their  powers  will  always  be 


50  READINGS  IN  CIVIL  GOVERNMENT 

greater.  The  Union  can  only  exercise  such  powers  as  are 
conferred ;  the  state  can  always  exercise  all  that  are  not  given 
to  the  Union. 

ADDITIONAL  READINGS 

1 — The  Origin  of  the  Constitution,  Bryce,  J.,  American  Com- 
monwealth, I,  19-31. 

2— The  Nature  of  the  American  State,  Willoughby,  W.  W., 
The  American  Constitutional  System,  12-32. 

3 — The  Principles  of  the  Fathers,  Woodburn,  J.  A.,  The 
American  Republic,  1-43. 

4 — The  American  Democracy,  Abbott,  L.,  The  Rights  of 
Man,  194-215. 


CHAPTER  III 

THE  DEVELOPMENT  OF  THE  FEDERAL  CONSTITU- 
TION 

10.   WRITTEN  AND  UNWRITTEN  CONSTITUTIONS. 

Since  the  Constitution  of  the  United  States  was  adopted  it  has 
been  subject  to  formal  change  by  amendment  on  substantially  three 
occasions  only.  The  first  ten  amendments  were  adopted  so  soon  after 
the  Constitution  itself  that  they  may  be  considered  a  portion  of  the 
original  instrument  and,  in  any  event,  made  no  important  change  in 
its  meaning.  The  three  instances  referred  to  are :  first,  the  eleventh 
amendment  adopted  in  1798 ;  second,  the  twelfth  amendment  adopted 
in  1804;  and  third,  the  thirteenth,  fourteenth,  and  fifteenth  amend- 
ments adopted  in  1865,  1868  and  1870,  which,  inasmuch  as  they 
followed  each  other  so  closely  and  deal  with  the  same  subject,  may 
be  considered  together.  Moreover,  one  of  these  amendments,  the 
twelfth,  merely  corrected  a  minor  detail  in  the  machinery  of  the 
government ;  and  the  last  three  were  added  as  the  result  of  the  Civil 
War.  That  the  Constitution  has  been  subject  to  formal  amendment 
so  infrequently  is  one  of  the  remarkable  facts  of  its  history  and  is 
due  in  the  first  place  to  its  brevity — its  containing  merely  a  state- 
ment of  the  essential  principles  as  distinguished  from  the  minutia 
of  government — and  in  the  second  place  to  its  being  a  definite  written 
instrument  with  a  rather  hard  and  clumsy  provision  for  amendment, 
a  "rigid  constitution"  as  distinguished  from  an  "unwritten"  or  "elas- 
tic constitution."  In  the  following  selection  Mr.  James  Bryce  dis- 
cusses the  significance  of  this  last  characteristic: 

The  stability  of  a  constitution  is  an  object  to  be  much  de- 
sired both  because  it  inspires  a  sense  of  security  in  the  minds 
of  the  citizens,  encouraging  order,  industry  and  thrift,  and 
because  it  enables  experience  to  be  accumulated  whereby  the 
practical  working  of  the  constitution  may  be  improved.  Po- 
litical institutions  are  under  all  circumstances  difficult  to 
work,  and  when  they  are  frequently  changed,  the  nation  does 

51 


52  READINGS  IN  CIVIL  GOVERNMENT 

not  learn  how  to  work  them  properly.  Experiment  is  the  soul 
of  progress,  but  experiments  must  be  allowed  a  certain  meas- 
ure of  time.  The  plant  will  not  grow  if  men  frequently  un- 
cover the  roots  to  see  how  they  are  striking.  Constitutions 
embodied  in  one  legal  document  and  unchangeable  by  the  leg- 
islature, are  intended  to  be,  and  would  seem  likely  to  be,  pe- 
culiarly durable.  Being  definite,  they  do  not  give  that  open- 
ing to  small  deviations  and  perversions  likely  to  arise  from 
the  vagueness  of  a  Flexible  or  "  unwritten "  Constitution,  or 
from  the  probable  discrepancies  between  the  different  laws 
and  traditions  of  which  it  consists.  They  may  be  battered 
down,  but  they  cannot  easily  (save  by  a  method  to  be  pres- 
ently examined)  be  undermined.  When  an  attack  is  made 
upon  them,  whether  by  executive  acts  violating  their  pro- 
visions, or  by  the  passing  of  statutes  inconsistent  with  those 
provisions,  such  an  attack  can  hardly  escape  observation.  It 
is  a  plain  notice  to  the  defenders  of  the  constitution  to  rally 
and  to  stir  up  the  people  by  showing  the  mischief  of  an  in- 
sidious change.  The  principles  on  which  the  government 
rests,  being  set  forth  in  a  broad  and  simple  form,  obtain  a 
hold  upon  the  mind  of  the  community,  which,  if  it  has  been 
accustomed  to  give  those  principles  a  general  approval,  will 
be  unwilling  to  see  them  tampered  with.  Moreover  the  process 
prescribed  for  amendment  interposes  various  delays  and  for- 
malities before  a  change  can  be  carried  through,  pending 
which  the  people  can  reconsider  the  issues  involved,  and  re- 
cede, if  they  -think  fit,  from  projects  that  may  have  at  first 
attracted  them.  Both  in  Switzerland  and  in  the  States  of 
the  American  Union  it  has  repeatedly  happened  that  constitu- 
tional amendments  prepared  and  approved  by  the  legislature 
have  been  rejected  by  the  people,  not  merely  because  the  mass 
of  the  people  are  often  more  conservative  than  their  repre- 
sentatives, or  are  less  amenable  to  the  pressure  of  particular 
"interests"  or  sections  of  opinion,  but  because  fuller  discus- 
sion revealed  objections  whose  weight  had  not  been  appre- 
ciated when  the  proposal  first  appeared.  In  these  respects 
the  Rigid  Constitution  has  real  elements  of  stability. 


DEVELOPMENT  OF  THE  CONSTITUTION        53 

Nevertheless  it  may  be  really  less  stable  than  it  appears, 
for  there  is  in  its  rigidity  an  element  of  danger. 

It  has  already  been  noted  that  a  constitution  of  the  Flexible 
type  finds  safety  in  the  elasticity  which  enables  it  to  be 
stretched  to  meet  some  passing  emergency,  and  then  to  resume 
its  prior  shape,  and  that  it  may  disarm  revolution  by  meeting 
revolution  half-way.  This  is  just  what  the  Rigid  Constitution 
cannot  do.  It  is  constructed,  if  I  may  borrow  a  metaphor 
from  mechanics,  like  an  iron  railway-bridge,  built  solidly  to 
resist  the  greatest  amount  of  pressure  by  wind  or  water  that 
is  likely  to  impinge  upon  it.  If  the  materials  are  sound  and 
the  workmanship  good,  the  bridge  resists  with  apparent  ease, 
and  perhaps  without  showing  signs  of  strain  or  displacement, 
up  to  the  highest  degree  of  pressure  provided  for.  But  when 
that  degree  has  been  passed,  it  may  break  suddenly  and  ut- 
terly to  pieces,  as  the  old  Tay  Bridge  did  under  the  storm  of 
December,  1879.  The  fact  that  it  is  very  strong  and  all  knit 
tightly  into  one  fabric,  while  enabling  it  to  stand  firm  under 
small  oscillations  or  disturbances,  may  aggravate  great  ones. 
For  just  as  the  whole  bridge  collapses  together,  so  the  Rigid 
Constitution,  which  has  arrested  various  proposed  changes, 
may  be  overthrown  by  a  popular  tempest  which  has  gathered 
strength  from  the  very  fact  that  such  changes  were  not  and 
under  the  actual  conditions  of  politics  could  not  be  made  by 
way  of  amendment.  When  a  party  grows  up  clamouring  for 
some  reforms  which  can  be  effected  only  by  changing  the  con- 
stitution, or  when  a  question  arises  for  dealing  with  which  the 
constitution  provides  no  means,  then,  if  the  constitution  can- 
not be  amended  in  the  legal  way,  because  the  legally  pre- 
scribed majority  cannot  be  obtained,  the  discontent  that  was 
debarred  from  any  legal  outlet  may  find  vent  in  a  revolution 
or  a  civil  war.  The  history  of  the  Slavery  question  in  the 
United  States  illustrates  this  danger  on  so  grand  a  scale  that 
no  other  illustration  is  needed.  The  Constitution  of  1787, 
while  recognizing  the  existence  of  slavery,  left  sundry  ques- 
tions, and  in  particular  that  of  the  extension  of  slavery  into 
new  territories  and  States,  unsettled.  Thirty  years  later  these 


54  READINGS  IN  CIVIL  GOVERNMENT 

matters  became  a  cause  of  strife,  and  after  another  thirty 
years  this  strife  became  so  acute  as  to  threaten  the  peace  of 
the  country.  Both  parties  claimed  that  the  Constitution  was 
on  their  side.  Had  there  been  no  Constitution  embodied  in 
an  instrument  difficult  of  change,  or  had  it  been  practicable 
to  amend  the  Constitution,  so  that  the  majority  in  Congress 
could  have  had,  at  an  earlier  stage,  a  free  hand  in  dealing 
with  the  question,  it  is  possible — though  no  one  can  say  that 
it  is  certain — that  the  War  of  Secession  might  have  been 
averted.  So  much  may  at  any  rate  be  noted  that  the  Consti- 
tution which  was  intended  to  hold  the  whole  nation  together, 
failed  to  do  so.  There  might  no  doubt  in  any  case  have  been 
armed  strife,  as  there  was  in  England  under  its  Flexible  Con- 
stitution in  1641.  But  it  is  at  least  equally  probable  that  the 
slave-holding  party,  which  saw  its  hold  on  the  government 
slipping  away,  hardened  its  heart  because  it  held  that  it  was 
the  true  exponent  of  the  Constitution,  and  because  the  Consti- 
tution made  compromise  more  difficult  than  it  need  have  been 
in  a  country  possessing  a  fully  sovereign  legislature. 

Two  opposing  tendencies  are  always  at  work  in  countries 
ruled  by  these  Constitutions,  the  one  of  which  tends  to 
strengthen,  the  other  to  weaken  them.  The  first  is  the  growth 
of  the  respect  for  the  Constitution  which  increasing  age 
brings.  The  remark  is  often  made  that  if  husband  and  wife 
do  not  positively  dislike  one  another,  and  if  their  respective 
characters  do  not  change  under  ill-health  or  misfortune,  every 
year  makes  them  like  one  another  better.  .  .  .  So  a  na- 
tion, though  not  contented  with  its  Constitution,  and  vexed 
by  quarrels  over  parts  of  it,  may  grow  fond  of  it  simply  be- 
cause it  has  lived  with  it,  has  obtained  a  measure  of  prosperity 
under  it,  has  perhaps  been  wont  to  flaunt  its  merits  before 
other  nations,  and  to  toast  it  at  public  festivities.  The  magic  of 
self-love  and  self-complacency  turns  even  its  meaner  parts  to 
gold,  while  imaginative  reverence  for  the  past  lends  it  a 
higher  sanction.  This  is  one  way  in  which  Time  may  work. 
But  Time  also  works  against  it,  for  Time,  in  changing  the 
social  and  material  condition  of  a  people,  makes  the  old  politi- 


DEVELOPMENT  OF  THE  CONSTITUTION        55 

cal  arrangements  as  they  descend  from  one  generation  to  an- 
other a  less  adequate  expression  of  their  political  needs.  No- 
body now  discusses  the  old  problem  of  the  Best  Form  of  Gov- 
ernment, because  everybody  now  admits  that  the  chief  merit 
of  any  form  is  to  be  found  in  its  suitability  to  the  conditions 
and  ideas  of  those  among  whom  it  prevails.  Now  if  the  con- 
ditions of  a  country  change,  if  the  balance  of  power  among 
classes,  the  dominant  ideas  of  reflective  men,  the  distribution 
of  wealth,  the  sources  whence  wealth  flows,  the  duties  expected 
from  the  administrative  departments  of  government,  all  be- 
come different,  while  the  form  and  constitutionally-prescribed 
methods  of  government  remain  unmodified,  it  is  clear  that 
flaws  in  the  Constitution  will  be  revealed  which  were  previ- 
ously unseen,  and  problems  will  arise  with  which  its  arrange- 
ments cannot  cope.  The  remedy  is  of  course  to  amend  the 
Constitution.  But  that  is  just  what  may  be  impossible,  be- 
cause the  requisite  majority  may  be  unattainable ;  and  the  op- 
ponents of  amendment,  entrenched  behind  the  ramparts  of  an 
elaborate  procedure,  may  succeed  in  averting  changes  which 
the  safety  of  the  community  demands.  The  provisions  that 
were  meant  to  give  security  may  now  be  dangerous,  because 
they  stand  in  the  way  of  natural  development. 


11.   THE  DOCTRINE  OP   IMPLIED   POWERS. 

That  this  rigidity  in  our  Constitution  has  not  resulted  more  dis- 
astrously, that  the  Constitution  has  been  able  at  all  to  weather  the 
revolutionary  changes  in  political  and  industrial  conditions  that  have 
taken  place  since  its  adoption,  is  due  to  the  fact  that  it  has  been 
repeatedly  stretched  and  enlarged  by  the  informal  process  of  judicial 
interpretation.  This  has  been  done  under  the  guise  of  what  is 
termed  "implied  power."  One  of  the  earliest  instances  of  the  ap- 
plication of  this  doctrine  and  the  one  which  became  the  basis  for 
all  such  instances  thereafter  was  the  case  of  McCulloh  vs.  Maryland, 
in  which  Chief  Justice  John  Marshall  spoke  as  follows:  [1819]. 

The  government  of  the  United  States,  then,  though  limited 
in  its  powers,  is  supreme;  and  its  laws,  when  made  in  pur- 
suance of  the  constitution,  form  the  supreme  law  of  the  land, 


56  READINGS  IN  CIVIL  GOVERNMENT 

"  anything  in  the  constitution  or  laws  of  any  State,  to  the 
contrary  notwithstanding. ' ' 

Among  the  enumerated  powers,  we  do  not  find  that  of  estab- 
lishing a  bank  or  creating  a  corporation.  But  there  is  no 
phrase  in  the  instrument  which,  like  the  articles  of  confedera- 
tion, excludes  incidental  or  implied  powers;  and  which  re- 
quires that  everything  granted  shall  be  expressly  and  mi- 
nutely described.  Even  the  10th  amendment,  which  was 
framed  for  the  purpose  of  quieting  the  excessive  jealousies 
which  had  been  excited,  omits  the  word  "expressly,"  and  de- 
clares only  that  the  powers,  "not  delegated  to  the  United 
States,  nor  prohibited  to  the  States,  are  reserved  to  the  States 
or  to  the  people";  thus  leaving  the  question,  whether  the 
particular  power  which  may  become  the  subject  of  contest,  has 
been  delegated  to  the  one  government,  or  prohibited  to  the 
other,  to  depend  on  a  fair  construction  of  the  whole  instru- 
ment. The  men  who  drew  and  adopted  this  amendment,  had 
experienced  the  embarrassments  resulting  from  the  insertion 
of  this  word  in  the  articles  of  confederation,  and  probably 
omitted  it  to  avoid  those  embarrassments.  A  constitution, 
to  contain  an  accurate  detail  of  all  the  subdivisions  of  which 
its  great  powers  will  admit,  and  of  all  the  means  by  which 
they  may  be  carried  into  execution,  would  partake  of  the  pro- 
lixity of  a  legal  code,  and  could  scarcely  be  embraced  by  the 
human  mind.  It  would  probably  never  be  understood  by  the 
public.  Its  nature,  therefore,  requires  that  only  its  great 
outlines  should  be  marked,  its  important  objects  designated, 
and  the  minor  ingredients  which  compose  those  objects  be  de- 
duced from  the  nature  of  the  objects  themselves.  That  this 
idea  was  entertained  by  the  framers  of  the  American  consti- 
tution, is  not  only  to  be  inferred  from  the  nature  of  the  in- 
strument, but  from  the  language.  Why  else  were  some  of  the 
limitations,  found  in  the  9th  section  of  the  1st  article,  in- 
troduced ?  It  is  also,  in  some  degree,  warranted  by  their  hav- 
ing omitted  to  use  any  restrictive  term  which  might  prevent 
its  receiving  a  fair  and  just  interpretation.  In  considering 


DEVELOPMENT  OF  THE  CONSTITUTION        57 

this  question,  then,  we  must  never  forget,  that  it  is  a  constitu- 
tion we  are  expounding. 

Although,  among  the  enumerated  powers  of  government, 
we  do  not  find  the  word  "bank,"  or  "incorporation,"  we  find 
the  great  powers  to  lay  and  collect  taxes;  to  borrow  money; 
to  regulate  commerce;  to  declare  and  conduct  war;  and  to 
raise  and  support  armies  and  navies.  The  sword  and  the 
purse,  all  the  external  relations,  and  no  inconsiderable  portion 
of  the  industry  of  the  nation,  are  intrusted  to  its  government. 
It  can  never  be  pretended  that  these  vast  powers  draw  after 
them  others  of  inferior  importance,  merely  because  they  are 
inferior.  Such  an  idea  can  never  be  advanced.  But  it  may, 
with  great  reason,  be  contended,  that  a  government,  intrusted 
with  such  ample  powers,  on  the  due  execution  of  which  the 
happiness  and  prosperity  of  the  nation  so  vitally  depends, 
must  also  be  intrusted  with  ample  means  for  their  execution. 
The  power  being  given,  it  is  the  interest  of  the  nation  to  fa- 
cilitate its  execution.  It  can  never  be  their  interest,  and  can- 
not be  presumed  to  have  been  their  intention,  to  clog  and  em- 
barrass its  execution  by  withholding  the  most  appropriate 
means.  Throughout  this  vast  republic,  from  the  St.  Croix  to 
the  Gulf  of  Mexico,  from  the  Atlantic  to  the  Pacific,  revenue 
is  to  be  collected  and  expended,  armies  are  to  be  raised  and 
supported.  The  exigencies  of  the  nation  may  require,  that 
the  treasure  raised  in  the  North  should  be  transported  to  the 
South,  that  raised  in  the  East  conveyed  to  the  West,  or  that 
this  order  should  be  reversed.  Is  that  construction  of  the 
constitution  to  be  preferred  which  would  render  these  opera- 
tions difficult,  hazardous,  and  expensive  ?  Can  we  adopt  that 
construction  (unless  the  words  imperiously  require  it)  which 
would  impute  to  the  framers  of  that  instrument,  when  grant- 
ing these  powers  for  the  public  good,  the  intention  of  im- 
peding their  exercise  by  withholding  a  choice  of  means?  If, 
indeed,  such  be  the  mandate  of  the  constitution,  we  have  only 
to  obey;  but  that  instrument  does  not  profess  to  enumerate 
the  means  by  which  the  powers  it  confers  may  be  executed; 


58  READINGS  IN  CIVIL  GOVERNMENT 

nor  does  it  prohibit  the  creation  of  a  corporation,  if  the  ex- 
istence of  such  a  being  be  essential  to  the  beneficial  exercise  of 
those  powers.  .  .  . 

But  the  constitution  of  the  United  States  has  not  left  the 
right  of  congress  to  employ  the  necessary  means,  for  the  ex- 
ecution of  the  powers  conferred  on  the  government,  to  general 
reasoning.  To  its  enumeration  of  powers  is  added  that  of 
making  "all  laws  which  shall  be  necessary  and  proper,  for 
carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  constitution,  in  the  government  of  the 
United  States,  or  in  any  department  thereof. "  .  .  . 

The  subject  is  the  execution  of  those  great  powers  on  which 
the  welfare  of  a  nation  essentially  depends.  It  must  have 
been  the  intention  of  those  who  gave  these  powers,  to  insure, 
as  far  as  human  prudence  could  insure,  their  beneficial  execu- 
tion. This  could  not  be  done  by  confining  the  choice  of  means 
to  such  narrow  limits  as  not  to  leave  it  in  the  power  of  con- 
gress to  adopt  any  which  might  be  appropriate,  and  which 
were  conducive  to  the  end.  This  provision  is  made  in  a  con- 
stitution intended  to  endure  for  ages  to  come,  and,  conse- 
quently, to  be  adapted  to  the  various  crises  of  human  affairs. 
To  have  prescribed  the  means  by  which  government  should,  in 
all  future  time,  execute  its  powers,  would  have  been  to  change, 
entirely,  the  character  of  the  instrument,  and  give  it  the  prop- 
erties of  a  legal  code.  It  would  have  been  an  unwise  attempt 
to  provide,  by  immutable  rules,  for  exigencies  vhich,  if  fore- 
seen at  all,  must  have  been  seen  dimly,  and  which  can  be  best 
provided  for  as  they  occur.  To  have  declared  that  the  best 
means  shall  not  be  used,  but  those  alone  without  which  the 
power  given  would  be  nugatory,  would  have  been  to  deprive 
the  legislature  of  the  capacity  to  avail  itself  of  experience, 
to  exercise  its  reason,  and  to  accommodate  its  legislation  to 
circumstances.  If  we  apply  this  principle  of  construction  to 
any  of  the  powers  of  the  government,  we  shall  find  it  so  per- 
nicious in  its  operation  that  we  shall  be  compelled  to  discard 
it.  The  powers  vested  in  congress  may  certainly  be  carried 
into  execution,  without  prescribing  an  oath  of  office.  The 


DEVELOPMENT  OF  THE  CONSTITUTION        59 

power  to  exact  this  security  for  the  faithful  performance  of 
duty,  is  not  given,  nor  is  it  indispensably  necessary.  The  dif- 
ferent departments  may  be  established ;  taxes  may  be  imposed 
and  collected;  armies  and  navies  may  be  raised  and  main- 
tained; and  money  may  be  borrowed,  without  requiring  an 
oath  of  office.  It  might  be  argued,  with  as  much  plausibility, 
as  other  incidental  powers  have  been  assailed,  that  the  con- 
vention was  not  unmindful  of  this  subject.  The  oath  which 
might  be  exacted — that  of  fidelity  to  the  constitution — is  pre- 
scribed, and  no  other  can  be  required.  Yet,  he  would  be 
charged  with  insanity  who  should  contend,  that  the  legislature 
might  not  superadd  to  the  oath  directed  by  the  constitution, 
such  other  oath  of  office  as  its  wisdom  might  suggest. 

So,  with  respect  to  the  whole  penal  code  of  the  United 
States.  Whence  arises  the  power  to  punish  in  cases  not  pre- 
scribed by  the  constitution?  All  admit  that  the  government 
may,  legitimately,  punish  any  violation  of  its  laws;  and  yet, 
this  is  not  among  the  enumerated  powers  of  congress.  The 
right  to  enforce  the  observance  of  law,  by  punishing  its  infrac- 
tion, might  be  denied  with  the  more  plausibility,  because  it  is 
expressly  given  in  some  cases ;  congress  is  empowered  ' '  to  pro- 
vide for  the  punishment  of  counterfeiting  the  securities  and 
current  coin  of  the  United  States,"  and  "to  define  and  pun- 
ish piracies  and  felonies  committed  on  the  high  seas,  and 
offenses  against  the  law  of  nations."  The  several  powers  of 
congress  may  exist,  in  a  very  imperfect  state  to  be  sure,  but 
they  may  exist  and  be  carried  into  execution,  although  no  pun- 
ishment should  be  inflicted  in  cases  where  the  right  to  punish 
is  not  expressly  given. 

Take,  for  example,  the  power  "to  establish  post-offices  and 
post-roads. ' '  This  power  is  executed  by  the  single  act  of  mak- 
ing the  establishment.  But  from  this  has  been  inferred  the 
power  and  duty  of  carrying  the  mail  along  the  post-road,  from 
one  post-office  to  another.  And,  from  this  implied  power,  has 
again  been  inferred  the  right  to  punish  those  who  steal  letters 
from  the  post-office,  or  rob  the  mail.  It  may  be  said,  with 
some  plausibility,  that  the  right  to  carry  the  mail,  and  to  pun- 


60  READINGS  IN  CIVIL  GOVERNMENT 

ish  those  who  rob  it,  is  not  indispensably  necessary  to  the  es- 
tablishment of  a  post-office  and  post-road.  This  right  is,  in- 
deed, essential  to  the  beneficial  exercise  of  the  power,  but  not 
indispensably  necessary  to  its  existence.  So,  of  the  punish- 
ment of  the  crime  of  stealing  or  falsifying  a  record  or  process 
of  a  court  of  the  United  States,  or  of  perjury  in  such  court. 
To  punish  these  offenses  is  certainly  conducive  to  the  due  ad- 
ministration of  justice.  But  courts  may  exist,  and  may  decide 
the  causes  brought  before  them,  though  such  crimes  escape 
punishment. 

The  baneful  influence  of  this  narrow  construction  on  all 
the  operations  of  the  government,  and  the  absolute  impractica- 
bility of  maintaining  it  without  rendering  the  government 
incompetent  to  its  great  objects,  might  be  illustrated  by  nu- 
merous examples  drawn  from  the  constitution,  and  from  our 
laws.  The  good  sense  of  the  public  has  pronounced,  without 
hesitation,  that  the  power  of  punishment  appertains  to  - 
ereignty,  and  may  be  exercised  whenever  the  sovereign  has 
a  right  to  act,  as  incidental  to  his  constitutional  powers.  It  is 
a  means  for  carrying  into  execution  all  sovereign  powers,  and 
may  be  used,  although  not  indispensably  necessary.  It  is  a 
right  incidental  to  the  power,  and  conducive  to  its  beneficial 
exercise. 

If  this  limited  construction  of  the  word  "necessary"  must 
be  abandoned  in  order  to  punish,  whence  is  derived  the  rule 
which  would  reinstate  it,  when  the  government  would  carry 
its  powers  into  execution  by  means  not  vindictive  in  their 
nature?  If  the  word  "necessary"  means  "needful,"  "req- 
uisite," "essential,"  "conducive  to,"  in  order  to  let  in  the 
power  of  punishment  for  the  infraction  of  law,  why  is  it  not 
equally  comprehensive  when  required  to  authorize  the  use  of 
means  which  facilitate  the  execution  of  the  powers  of  gov- 
ernment without  the  infliction  of  punishment?  .  .  . 

We  admit,  as  all  must  admit,  that  the  powers  of  the  gov- 
ernment are  limited,  and  that  its  limits  are  not  to  be 
transcended.  But  we  think  the  sound  construction  of  the 
constitution  must  allow  to  the  national  legislature  that  dis- 


DEVELOPMENT  OP  THE  CONSTITUTION        61 

cretion,  with  respect  to  the  means  by  which  the  powers  it 
confers  are  to  be  carried  into  execution,  which  will  enable  that 
body  to  perform  the  high  duties  assigned  to  it,  in  the  manner 
most  beneficial  to  the  people.  Let  the  end  be  legitimate,  let  it 
be  within  the  scope  of  the  constitution,  and  all  means  which 
are  appropriate,  which  are  plainly  adapted  to  that  end,  which 
are  not  prohibited,  but  are  consistent  with  the  letter  and  spirit 
of  the  constitution,  are  constitutional. 

12.    THE  INTERPRETATION  OF  RIGID  CONSTITUTIONS. 

In  the  following  selection  Mr.  James  Bryce  points  out  clearly  both 
the  danger  and  the  necessity  of  the  judicial  process  of  amendment 
as  well  as  the  practices  of  several  other  countries  in  this  particular : 

A  well-drawn  Rigid  Constitution  will  confine  itself  to  essen- 
tials, and  leave  many  details  to  be  filled  in  subsequently  by 
ordinary  legislation  and  by  usage.  But  (as  already  observed) 
even  the  best-drawn  instrument  is  sure  to  have  omitted  some 
things  which  ought  to  have  been  expressly  provided  for,  to 
have  imposed  restrictions  which  will  prove  inconvenient  in 
practice,  to  contain  provisions  which  turn  out  to  be  susceptible 
of  different  interpretations  when  cases  occur  raising  a  point  to 
which  the  words  of  those  provisions  do  not  seem  to  be  di- 
rectly addressed.  When  any  of  these  things  happen,  the 
authorities,  legislative  and  executive,  who  have  to  work  the 
Constitution  find  themselves  in  a  difficulty.  Steps  seem  called 
for  which  the  Constitution  either  does  not  give  power  to  do, 
or  forbids  to  be  done,  or  leaves  in  such  doubt  as  to  raise 
scruples  and  controversies.  The  authorities,  or  the  nation 
itself,  have  then  three  alternative  courses  open  to  them.  The 
first  is  to  submit  to  the  restrictions  which  the  Constitution  im- 
poses, and  abandon  a  contemplated  course  of  action,  though 
the  public  interest  demands  it.  This  is  disagreeable,  but  if  the 
case  is  not  urgent,  may  be  the  best  course,  though  it  tends 
to  the  disparagement  of  the  Constitution  itself.  The  second 
course  is  to  amend  the  Constitution;  and  it  is  obviously  the 
proper  one,  if  it  be  possible.  But  it  may  be  practically  im- 


62  READINGS  IN  CIVIL  GOVERNMENT 

possible,  because  the  procedure  for  passing  an  amendment  may 
be  too  slow,  the  need  for  action  being  urgent  or  because  the 
majority  that  can  be  secured  for  amendment,  even  if  large, 
may  be  smaller  than  the  Constitution  prescribed.  The  only 
remaining  expedient  is  that  which  is  euphemistically  called 
Extensive  Interpretation,  but  may  really  amount  to  Evasion. 
Evasion,  pernicious  as  it  is,  may  give  a  slighter  shock  to  pub- 
lic confidence  than  open  violation,  as  some  have  argued  that 
equivocation  leaves  a  man's  conscience  less  impaired  for  fu- 
ture use  than  does  the  telling  of  a  downright  falsehood.  Cases 
occur  in  which  the  Executive  or  the  Legislature  profess  to  be 
acting  under  the  Constitution,  when  in  reality  they  are 
stretching  it,  or  twisting  it,  i.  e.,  are  putting  a  forced  construc- 
tion upon  its  terms,  and  affecting  to  treat  that  as  being  lawful 
under  its  term  which  the  natural  sense  of  the  terms  does  not 
justify.  The  question  follows  whether  such  an  evasion  will  be 
held  legal,  i.  e.,  whether  acts  done  in  virtue  of  such  a  forced 
construction  as  aforesaid  will  be  deemed  constitutional,  and 
will  bind  the  citizens  as  being  legally  done.  This  will  evi- 
dently depend  on  a  matter  we  have  not  yet  considered,  but 
one  of  profound  importance,  viz. :  the  authority  in  whom  is 
lodged  the  right  of  interpreting  a  Rigid  Constitution. 

On  this  point  there  is  a  remarkable  diversity  of  theory  and 
practice  between  countries  which  follow  the  English  and  coun- 
tries which  follow  the  Roman  law.  The  English  attribute  the 
right  to  the  Judiciary.  As  a  constitutional  instrument  is  a 
law,  distinguished  from  other  laws  only  by  its  higher  rank, 
principle  suggests  that  it  should,  like  other  laws,  be  inter- 
preted by  the  legal  tribunals,  the  last  word  resting,  as  in  other 
matters,  with  the  final  Court  of  Appeal.  This  principle  of 
referring  to  the  courts  all  questions  of  legal  interpretation 
may  be  said  to  be  inherent  in  the  English  Common  Law,  and 
holds  the  field  in  all  countries  whose  systems  are  built  upon 
the  foundation  of  that  Common  Law.  In  particular,  it  holds 
good  in  the  United  Kingdom  and  in  the  United  States.  As 
the  British  Parliament  can  alter  any  part  of  the  British  Con- 
stitution at  pleasure,  the  principle  is  of  secondary  political 


DEVELOPMENT  OF  THE  CONSTITUTION         63 

importance  in  England,  for  when  any  really  grave  question 
arises  on  the  construction  of  a  constitutional  law  it  is  dealt 
with  by  legislation.  However,  the  action  of  the  courts  in  con- 
struing the  existing  law  is  watched  with  the  keenest  interest 
when  questions  arise  which  the  Legislature  refuses  to  deal 
with,  such,  for  instance,  as  those  that  affect  the  doctrine  and 
discipline  of  the  Established  Church.  So  in  the  seventeenth 
century,  when  constitutional  questions  were  at  issue  between 
the  King  and  the  House  of  Commons,  which  it  was  impossible 
to  settle  by  statute,  because  the  King  would  have  refused  con- 
sent to  bills  passed  by  the  Commons,  the  power  of  the  Judges 
to  declare  the  rules  of  the  ancient  Constitution  was  of  great 
significance.  In  the  United  States,  where  Congress  cannot 
alter  the  Constitution,  the  function  of  the  Judiciary  to  in- 
terpret the  will  of  the  people  as  set  forth  in  the  Constitution 
has  attained  its  highest  development.  The  framers  of  that 
Constitution  perhaps  scarcely  realized  what  the  effect  of  their 
arrangements  would  be.  More  than  ten  years  passed  before 
any  case  raised  the  point;  and  when  the  Supreme  Court  de- 
clared that  an  Act  of  Congress  might  be  invalid  because  in  ex- 
cess of  the  power  granted  by  the  Constitution,  some  surprise 
and  more  anger  were  expressed.  The  reasoning  on  which  the 
Court  proceeded  was,  however,  plainly  sound,  and  the  right 
was  therefore  soon  admitted.  Canada  and  Australia  have  fol- 
lowed the  English  doctrine,  so  the  Bench  has  a  weighty  func- 
tion under  the  constitutions  of  both  those  Federations. 

On  the  European  Continent  a  different  view  prevails,  and 
the  Legislature  is  held  to  be  the  judge  of  its  own  powers  under 
the  Constitution,  so  that  no  court  of  law  may  question  the 
authority  of  a  statute  passed  in  due  form.  Such  is  the  rule 
in  Switzerland.  There,  as  in  most  parts  of  the  European 
Continent,  the  separation  of  the  Judiciary  from  the  other  two 
powers  has  been  less  complete  than  in  England,  and  the  defer- 
ence to  what  Englishmen  and  Americans  call  the  Rule  of  Law 
less  profound.  The  control  over  governmental  action  which 
the  right  of  interpretation  implies  seems  to  the  Swiss  too  great, 
and  too  political  in  its  nature,  to  be  fit  for  a  legal  tribunal.  It 


64  READINGS  IN  CIVIL  GOVERNMENT 

is  therefore  vested  in  the  National  Assembly,  which  when  a 
question  is  raised  as  to  the  constitutionality  of  a  Federal 
Statute  or  Executive  Act,  or  as  to  the  transgression  of  the 
Federal  Constitution  by  a  Cantonal  Statute,  is  recognized  as 
the  authority  competent  to  decide.  The  same  doctrine  seems 
to  prevail  in  the  German  Empire,  though  the  point  is  there 
not  quite  free  from  doubt,  and  also  in  the  Austrian  Mon- 
archy, in  France,  and  in  Belgium.  In  the  Orange  Free  State, 
living  under  Roman-Dutch  law,  the  Bench,  basing  itself  on 
American  precedents,  claimed  the  right  of  authoritative  in- 
terpretation, but  the  Legislature  hesitated  to  admit  it. 

American  lawyers  conceive  that  the  strength  and  value  of 
a  Rigid  Constitution  are  greatly  reduced  when  the  Legislature 
becomes  the  judge  of  its  own  powers,  entitled  after  passing  a 
statute  which  really  transgresses  the  Constitution  to  declare 
that  the  Constitution  has  in  fact  not  been  transgressed.  The 
Swiss,  however,  deem  the  disadvantages  of  the  American 
method  still  more  serious,  for  they  hold  that  it  gives  the  last 
word  to  the  judges,  persons  not  chosen  for  or  fitted  for  such 
a  function,  and  they  declare  that  in  point  of  fact  public  opin- 
ion and  the  traditions  of  their  government  prevent  the  power 
vested  in  their  National  Assembly  from  being  abused.  And  it 
must  be  added  that  the  Americans  have  so  far  felt  the  diffi- 
culty which  the  Swiss  dwell  on,  that  the  Supreme  Court  has 
refused  to  pronounce  upon  the  action  of  Congress  in  "purely 
political  cases,'*  i.  e.,  cases  where  the  arguments  used  to  prove 
or  disprove  the  conformity  to  the  Constitution  of  the  action 
taken  by  Congress  are  of  a  political  nature. 

Returning  to  the  question  of  legislative  action  alleged  to 
transgress  the  Constitution  it  is  plain  that  if  the  Legislature 
be,  as  in  Switzerland,  the  arbiter  of  its  own  powers,  so  that 
the  validity  of  its  acts  cannot  be  questioned  in  a  court  of  law, 
there  is  no  further  difficulty.  But  where  that  validity  can  be 
challenged,  as  in  the  United  States,  it  might  be  supposed  that 
every  unconstitutional  statute  will  be  held  null,  and  that  thus 
any  such  stretching  or  twisting  of  the  Constitution  as  has  been 
referred  to  will  be  arrested.  But  experience  has  shown  that 


DEVELOPMENT  OF  THE  CONSTITUTION        65 

where  public  opinion  sets  strongly  in  favour  of  the  line  of  con- 
duct which  the  Legislature  has  followed  in  stretching  the  Con- 
stitution, the  Courts  are  themselves  affected  by  that  opinion, 
and  go  as  far  as  their  legal  conscience  and  the  general  sense  of 
the  legal  profession  permit — possibly  sometimes  even  a  little 
farther — in  holding  valid  what  the  Legislature  has  done.  This 
occurs  most  frequently  where  new  problems  of  an  adminis- 
trative kind  present  themselves.  The  Courts  recognize,  in 
fact,  that  "principle  of  development"  which  is  potent  in  poli- 
tics as  well  as  in  theology.  Human  affairs  being  what  they 
are,  there  must  be  a  loophole  for  expansion  or  extension  in 
some  part  of  every  scheme  of  government ;  and  if  the  Consti- 
tution is  Rigid,  Flexibility  must  be  supplied  from  the  minds 
of  the  Judges.  Instances  of  this  kind  have  occurred  in  the 
United  States,  as  when  some  twenty  years  ago  the  Supreme 
Court  recognized  a  power  in  a  State  Legislature  to  deal  with 
railway  companies  not  consistent  with  the  opinions  formerly 
enounced  by  the  Court,  though  they  disclaimed  the  intention 
of  overruling  those  opinions. 

13.    THE  PRESENT  MEANING  OF  THE  CONSTITUTION  :  THE 
STRICT   VIEW. 

The  importance  of  this  question  of  judicial  extension  of  the  Con- 
stitution has  greatly  increased  during  the  last  few  years  because  of 
the  development  of  large  industrial  enterprises  and  the  consequent 
appearance  of  difficult  problems  of  corporate  management.  Shall 
Congress  be  enabled  to  deal  with  these  great  problems'?  If  so,  by 
what  process?  Manifestly  the  framers  of  the  Constitution  contem- 
plated no  such  industrial  or  economic  questions  as  now  confront  the 
country.  Must  the  Constitution,  then,  be  amended  when  each  new 
situation  arises,  or  may  its  meaning  be  so  understood  as  to  warrant 
the  exercise  of  powers  appropriate  to  the  central  government  under 
any  situation1?  Each  of  these  positions  has  its  advocates,  their 
views  standing  in  sharp  contrast  to  one  another.  Professor  Henry 
Wade  Rogers  of  Yale  University  holds  to  the  strict  view  and  states 
the  case  as  follows:  [1908]. 

A  disposition  has  manifested  itself  to  ignore  the  canons  of 
constitutional  construction  which  have  heretofore  guided  the 


66  READINGS  IN  CIVIL  GOVERNMENT 

courts  of  this  country,  and  to  establish  a  new  theory  which 
shall  give  to  the  Constitution  that  quality  of  elasticity  which 
is  the  characteristic  of  the  common  law.  The  Constitution  is 
itself  beginning  to  be  regarded  by  some  of  our  people  as  an 
antiquated  document  which  has  been  outgrown,  and  which 
established  a  government  that  was  democratic  in  name  but 
anti-republican  in  fact.  An  antipathy  is  expressed  to  the 
limitations  of  power  which  the  Constitution  has  imposed  iiinl 
which  the  Fathers  reverenced  and  deemed  necessary.  These 
tendencies  are  found  to  some  extent  in  both  of  the  great  par- 
ties and  in  all  sections  of  the  country.  The  tendencies  are  in- 
creasing and  they  should  be  earnestly  opposed  and  strenu- 
ously resisted.  It  is  not  surprising  that,  among  eighty-five 
millions  of  people,  theories  of  government  should  be  advanced 
which  are  false,  visionary  and  mischievous.  But  the  expres- 
sion of  such  views  need  not  occasion  any  serious  apprehension. 
The  American  people,  in  their  final  judgment,  are  not  likely  to 
go  wrong,  or  consent  that  reckless  innovation  shall  proceed 
unchecked.  The  foundation  principles  of  our  institutions  are 
not  to  be  undermined  and  destroyed.  .  .  . 

In  one  of  his  speeches,  Mr.  Secretary  Root  has  said : 

"It  is  useless  for  the  advocates  of  State  rights  to  inveigh  against 
the  supremacy  of  the  constitutional  laws  of  the  United  States  or 
against  the  extension  of  national  authority  in  the  fields  of  necessary 
control,  when  the  States  themselves  fail  in  the  performance  of  their 
duty.  The  instinct  for  self-government  among  the  people  of  the 
United  States  is  too  strong  to  permit  them  long  to  refute  anyone's 
right  to  exercise  a  power  which  he  fails  to  exercise.  The  govern- 
mental control  which  they  deem  just  and  necessary  they  will  have. 
It  may  be  that  such  control  would  better  be  exercised  in  particular 
instances  by  the  government  of  the  States,  but  the  people  will  have 
the  control  they  need  either  from  the  States  or  from  the  National 
Government,  and  if  the  States  fail  to  furnish  it  in  due  measure, 
sooner  or  later  constructions  of  the  Constitution  will  be  found  to  vest 
the  power  where  it  will  be  exercised  in  the  National  Government." 

In  other  words,  centralization  of  power  in  the  nation  is 
to  be  accomplished  not  by  amendment  of  the  Constitution 
depriving  States  of  rights  which  are  now  theirs  under  the 


DEVELOPMENT  OF  THE  CONSTITUTION        67 

Constitution,  but  they  are  to  be  deprived  of  those  rights  by 
construction  and  interpretation.  The  revolutionary  character 
of  these  utterances  will  be  better  understood  if  they  are  read 
in  the  light  of  the  principles  laid  down  by  the  leading  author- 
ity on  American  Law.  In  his  great  work  on  Constitutional 
Limitations,  Mr.  Justice  Cooley  says: 

"A  constitution  is  not  to  be  made  to  mean  one  thing  at  one  time, 
and  another  at  some  subsequent  time  when  the  circumstances  may 
have  so  changed  as  to  make  a  different  rule  in  the  case  seem  desir- 
able. ...  A  court  or  Legislature  which  should  allow  a  change 
in  public  sentiment  to  influence  it  in  giving  to  a  written  Constitution 
a  construction  not  warranted  by  the  intention  of  its  founders,  would 
be  justly  chargeable  with  reckless  disregard  of  official  oath  and 
public  duty.  .  .  .  What  a  court  is  to  do,  therefore,  is  to  declare 
the  law  as  written,  leaving  it  to  the  people  themselves  to  make 
such  changes  as  new  circumstances  require.  The  meaning  of  the 
Constitution  is  fixed  when  it  is  adopted,  and  it  is  not  different  at 
any  subsequent  time  when  a  Court  has  occasion  to  pass  upon  it." 

This,  it  should  be  needless  to  say,  is  the  doctrine  of  the 

Supreme  Court.     That  Court  has  lately  said : 

» 

"The  Constitution  is  a  written  document ;  as  such  its  meaning  does 
not  alter.  That  which  it  meant  when  adopted,  it  means  now.  .  .  . 
Those  things  which  are  written  within  its  grant  of  power,  as  those 
grants  were  understood  when  made,  are  still  within  them;  and  those 
things  not  within  them  remain  still  excluded.  ...  As  long  as 
it  continues  to  exist  in  its  present  form,  it  speaks  not  only  in  the 
same  words,  but  with  the  same  meaning  and  intent  with  which  it 
spoke  when  it  came  from  the  hands  of  its  framers." 

To  be  told  by  men  in  high  authority  that  the  Constitution 
is  to  be  changed  by  construction  and  interpretation,  so  that  it 
shall  mean  something  different  from  what  it  says  and  from 
what  it  has  always  been  understood  to  mean,  and  from 
what  it  was  intended  to  mean  by  those  who  framed  and 
adopted  it,  is  evidence  of  an  extraordinary  disregard  of  the 
accepted  principles  of  courts  and  commentators. 

The  proposal  to  discard  the  idea  that  the  constitution  al- 
ways means  the  same  thing,  and  to  adopt  the  theory  that  the 
courts  shall  by  construction  make  it  mean  what  the  people 


68  READINGS  IN  CIVIL  GOVERNMENT 

want  it  to  mean  or  what  the  exigencies  of  the  occasion  may 
seem  to  require  it  to  mean,  is  in  effect  to  propose  that  the 
Supreme  Court  shall  have  the  power,  by  a  vote  of  five  to  four, 
to  amend  the  instrument  according  to  their  views  as  to  what 
it  is  desirable  it  should  mean.  This  power  the  courts  are  to 
have  in  order  to  give  elasticity  to  the  Constitution.  The  Con- 
stitution points  out  the  method  by  which  the  people  are  to 
amend  it  when,  in  their  judgment,  it  needs  amendment.  But 
as  the  people  have  not  made  much  use  of  the  amending  power, 
it  is  concluded  that  instead  of  requiring  a  change  in  the  Con- 
stitution to  be  ratified  by  the  Legislatures  of  three-fourths  of 
the  several  states,  as  the  framers  provided,  it  will  be  much 
the  simpler  and  easier  way  just  to  permit  the  Supreme  Court 
to  make  the  change  by  construction,  even  though  it  be  by  a 
five  to  four  vote,  so  construing  the  words  used  in  the  instru- 
ment as  to  give  them,  not  the  meaning  which  those  who  framed 
and  adopted  the  instrument  meant  them  to  have,  but  the  mean- 
ing which  the  majority  of  the  court  may  think  that  the  people 
at  that  particular  time  most  approve.  To  secure  the  approval 
of  five  of  the  judges  of  the  Supreme  Court  may  be  less 
troublesome  than  to  secure  the  approval  of  the  Legislatures  of 
thirty-four  states.  But  any  theory  of  construction  which 
makes  the  Constitution  mean  what  a  majority  of  the  people 
think  at  a  given  time  it  should  mean,  is  certainly  not  in  ac- 
cordance with  the  law  and  the  prophets.  A  Federal  judge  of 
an  inferior  court,  in  a  paper  read  before  the  American  Bar 
Association  at  Portland  in  August  last,  argued  in  support  of 
this  new  theory.  But  as  Mr.  Justice  Harlan  of  the  Supreme 
Court  of  the  United  States  has  said,  those  who  hold  to  this 
theory  are  "happily,  few  in  number. "  Continuing,  Justice 
Harlan  declared  that  "such  theories  of  constitutional  con- 
struction find  no  support  in  judicial  decisions  or  in  sound 
reason,  least  of  all  in  the  final  judgments  of  that  tribunal 
whose  greatest  function  is  to  declare  the  meaning  and  the 
scope  of  the  fundamental  law." 


DEVELOPMENT  OF  THE  CONSTITUTION        69 

14.   THE  PRESENT   MEANING  OP   THE   CONSTITUTION:   THE 
LIBERAL   VIEW. 

On  the  other  hand,  Judge  Charles  F.  Amidon  of  the  United  States 
District  Court  for  South  Dakota,  holds  that  the  Constitution  must  be 
constantly  given  new  meanings  to  meet  new  conditions  as  they 
arise:  [1907]. 

At  this  time  when  constitutional  questions  are  being  dis- 
cussed with  unusual  zeal,  it  has  seemed  to  me  worth  while  to 
bring  before  us  in  a  single  vision  both  these  aspects  of  our 
constitutional  life.  They  have  seldom  been  looked  at  together, 
but  in  debate  each  side  has  put  forward  the  one  or  other  ac- 
cording to  its  immediate  needs.  They  embody  the  progressive 
and  conservative  forces  of  the  nation.  To  give  over  the  en- 
tire field  to  either  would  be  equally  disastrous.  If  we  accept 
the  notion  that  our  constitution  is  absolutely  rigid  and  change- 
less, our  government  becomes  a  kind  of  legal  Calvinism,  logic- 
ally perfect,  perhaps,  but  wholly  unfit  for  life.  The  national 
growth  would  be  cramped  and  arrested,  and  confined  to  a 
purely  historic  mould.  The  dead  hand  of  the  past  is  oppres- 
sive when  laid  upon  property,  but  becomes  the  worst  form  of 
tyranny  when  laid  upon  the  powers  of  government.  On  the 
other  hand,  if  we  exalt  our  constitutional  practice  to  be  the 
only  rule  of  conduct,  all  the  benefits  of  written  constitutions 
are  swept  away.  The  government  becomes  solely  a  control 
by  the  majority.  Oblivious  of  the  wisdom  of  the  past,  it  is 
ruled  by  the  passions  and  prejudices  of  the  hour.  The  na- 
tion has  been  wiser  than  the  partisans  of  either  our  theory 
or  our  practice.  In  utter  disregard  of  nice  logical  consistency, 
it  has  insisted  upon  combining  them  both,  and  in  their  union 
has  found  that  mingling  of  flux  and  permanence  which  consti- 
tutes the  living  principle  of  every  great  historic  nation. 

Of  late  we  have  heard  quoted  again  and  again,  from  the 
Bench  and  from  the  platform,  the  language  of  Chief  Justice 
Taney  in  the  Dred  Scott  case,  that  the  constitution  "Speaks 
not  only  in  the  same  words,  but  with  the  same  meaning  and 
intent  with  which  it  spoke  when  it  came  from  the  hands  of  its 


70  READINGS  IN  CIVIL  GOVERNMENT 

framers."  The  only  objection  to  that  fine  phrase  is  that  it  is 
not  true.  The  exact  contrary  would  be  nearer  the  truth,  viz. : 
That  not  a  single  distinctive  word  or  phrase  in  the  constitu- 
tion has  the  same  meaning  to-day  which  it  had  when  that  in- 
strument came  from  the  hands  of  its  framers.  Such  language 
is  as  reprehensible  from  that  side  of  the  controversy  as  on 
the  other  side  are  the  words  of  the  impassioned  phrase-maker 
referred  to  by  Senator  Knox  in  his  very  able  address  at  Yale. 
With  a  practical  and  rapidly  progressive  people  like  ours,  the 
Pharisaical  doctrine  that  the  nation  exists  for  the  constitution 
instead  of  the  constitution  for  the  nation,  can  never  obtain 
permanent  acceptance.  The  constitution  performs  its  chief 
service  when  it  holds  the  nation  back  from  hasty  and  pas- 
sionate action,  and  compels  it  to  investigate,  consider  and 
weigh  until  it  is  made  sure  that  the  proposed  action  does  not 
embody  the  passion  of  the  hour,  but  the  settled  purpose  of  the 
years.  A  changeless  constitution  becomes  the  protector  not 
only  of  vested  rights  but  of  vested  wrongs.  As  Bacon  says, 
"He  that  will  not  apply  new  remedies  must  accept  new  evils, 
for  time  is  the  greatest  innovator.  ...  A  froward  reten- 
tion of  custom  is  as  turbulent  a  thing  as  any  innovation. " 
A  constitution  which  fixedly  restrains  a  people  from  correcting 
their  actual  evils  becomes  associated  in  the  popular  mind  with 
the  evils  themselves.  When  it  performs  that  role,  as  ours  once 
did,  it  becomes  in  the  estimation  of  reformers  a  *  *  compact  witli 
hell, ' '  and  enlightened  statesmen  appeal  from  its  provisions  to 
a  "higher  law." 

But  it  is  now  insisted  with  a  zeal  such  as  has  not  been  heard 
since  John  Taylor  of  Caroline,  that  if  the  constitution  is  to  be 
changed  it  must  be  done  in  the  manner  which  the  instrument 
itself  provides  for  its  amendment.  To  say  that,  however,  is  to 
say  that  it  shall  not  be  changed  at  all,  for  we  are  taught  by. 
a  century  of  our  history  that  the  constitution  can  no  longer 
be  thus  amended.  Since  1804  more  than  two  thousand  amend- 
ments have  been  proposed.  Many  of  them  have  been  the  sub- 
ject of  much  public  discussion,  have  found  a  place  in  party 
platform ;  some  have  received  the  requisite  vote  of  one  branch 


DEVELOPMENT  OF  THE  CONSTITUTION        71 

of  Congress;  but  with  the  exception  of  the  war  amendments, 
all  have  failed  of  adoption. 

The  vast  enlargement  of  our  country  has  made  the  method 
of  amendment  provided  by  the  fathers  far  more  difficult  than 
they  contemplated  at  the  time.  They  also  believed  that  they 
had  forever  foreclosed  the  possibility  of  government  by  party, 
and  the  inauguration  of  that  system  has  made  the  plan  which 
they  devised  unworkable;  for  any  amendment  which  is  pro- 
posed by  one  party  encounters  the  opposition  of  the  other.  If 
objection  does  not  exist  to  the  subject  matter,  it  is  called  forth 
by  partisan  considerations.  No  amendment,  therefore,  is  pos- 
sible except  when  one  party  controls  the  legislatures  of  three- 
fourths  of  the  states,  and  a  two-thirds  majority  in  Congress. 
This  condition  has  not  existed  since  the  early  part  of  the  last 
century,  nor  is  it  ever  likely  to  occur  again. 

But  probably  the  greatest  force  opposed  to  constitutional 
amendment  is  the  fear  of  radicalism  by  the  large  business  in- 
terests of  the  country.  The  wave  of  socialistic  tendency  which 
is  now  sweeping  over  all  western  nations  has  greatly  added 
to  this  alarm.  Property  knows  that  it  is  safe  under  the  consti- 
tution as  it  is.  There  is  a  very  general  understanding  that 
formal  amendment  is  impossible.  Every  year  that  goes  by 
without  such  a  change  strengthens  that  understanding ;  but  if 
its  power  were  once  broken  by  an  actual  amendment,  it  is  im- 
possible to  foresee  the  forces  that  might  be  set  in  operation. 
Hence  with  business  interests  it  is  the  fact  of  amendment  that 
controls,  and  not  the  subject  matter. 

It  is  not  only  true  that  the  constitution  cannot  be  amended 
in  the  method  which  it  provides,  but  that  such  a  change  is 
neither  needed  nor  best.  Formal  amendment  is  not  suitable  to 
bring  about  those  slight  but  steady  modifications  of  funda- 
mental law  which  adapt  it  to  the  progressive  life  of  the  nation. 
It  is  far  too  violent  a  remedy  for  that  purpose.  The  constitu- 
tion has  been  and  ought  to  be  accommodated  to  the  ever- 
changing  conditions  of  society  by  a  process  as  gradual  as  the 
changes  themselves.  Like  the  Kingdom  of  Heaven,  amend- 
ments such  as  these  come  not  by  observation.  No  political 


72  READINGS  IN  CIVIL  GOVERNMENT 

prophet  can  say  of  them,  Lo,  here !  or  Lo,  there !  As  the  re- 
sult of  more  than  a  hundred  years  of  experience  the  nation 
has  become  acquainted  with  this  process  of  amendment  and  is 
satisfied  with  it.  It  must  now  be  accepted  as  a  part  of  our 
frame  of  government  of  equal  validity  with  the  constitution 
itself. 

But  if  the  constitution  is  changed  by  interpretation  will  it 
not  be  entirely  swept  away  by  the  process  ?  We  hear  much  of 
this  argument  in  terrorem.  In  the  minds  of  its  advocates  the 
constitution  is  a  kind  of  St.  Rupert's  drop,  so  fragile  that  if 
its  elements  be  disturbed  in  the  slightest  degree,  the  entire 
combination  will  explode.  Experience  tells  us  that  it  is  made 
of  sterner  stuff.  After  a  century  of  such  interpretation  by 
which  the  instrument  has  been  so  altered  that  Mr.  Ford  tells 
us  its  authors  would  not  know  it,  it  is  to-day  performing  its 
functions  with  far  greater  vigor  than  during  the  period  fol- 
lowing its  adoption.  Being  a  great  instrument  of  government 
it  cannot  be  read  in  the  library.  As  the  late  Justice  Miller 
stated  to  a  company  of  judges  and  lawyers  at  St.  Paul  a  short 
time  before  his  death:  "The  great  questions  of  constitutional 
law  are  not  to  be  finally  settled  by  nine  men,  however  wise, 
taking  them  off  into  a  room  and  reading  and  studying  about 
them.  That  is  the  way  we  start  the  process.  We  place  the 
decision  the  best  we  can,  according  to  that  light,  and  then  see 
how  it  works  in  its  actual  application  to  the  national  life. 
Very  frequently  that  illumination  shows  us  that  we  have  gone 
far  to  one  side  of  the  true  line.  With  this  instruction  of  ex- 
perience we  place  the  next  case  on  the  other  side  and  observe 
its  application  and  so  on,  from  time  to  time  adding  to  our 
thought  and  study  the  results  of  experience  and  observation, 
we  finally  evolve  the  true  solution  by  a  process  of  exclusion 
and  inclusion.  The  meaning  of  the  constitution  is  to  be 
sought  as  much  in  the  national  life  as  in  the  dictionary. ' ' 

In  our  constitutional  theory  we  habitually  assume  that  the 
provisions  of  the  constitution  have  but  one  meaning,  and  that 
plain  and  precise.  But  this  is  not  its  real  character.  As 
Marshall  declares  in  McCulloch  vs.  Maryland,  "Its  nature 


DEVELOPMENT  OF  THE  CONSTITUTION        73 

requires  that  only  its  great  outlines  should  be  marked,  and  its 
important  objects  designated.  ...  It  was  intended  to  en- 
dure for  ages  to  come,  and  to  be  adapted  to  the  various  crises 
in  human  affairs."  An  instrument  of  such  a  character  must 
necessarily  leave  a  wide  latitude  for  construction.  The  fact 
that  the  Supreme  Court  in  constitutional  cases  so  frequently 
stands  five  to  four,  each  division  assigning  weighty  reasons  for 
diametrically  opposite  views,  shows  plainly  how  much  the  con- 
stitution in  actual  application  is  a  matter  of  interpretation. 
Now  that  questions  of  government  are  becoming  so  largely 
economic,  the  majority  of  our  so-called  constitutional  cases 
turn  not  upon  the  interpretation  of  the  instrument  itself,  but 
upon  the  construction  of  the  living  conditions  to  which  it  is 
to  be  applied. 

ADDITIONAL  READINGS 

1 — The  Nature  of  the  Federal  Government,  Bryce,  J.,  Ameri- 
can Commonwealth,  I,  32-37. 

2 — The  Federal  Union,  Woodburn,  J.  A.,  The  American  Re- 
public, 60-93. 

3 — Enumerated  and  Implied  Powers,  Tiedeman}  C.  S.,  The 
Unwritten  Constitution,  129-44. 

4 — The  Rigid  Constitution,  Higgins,  H.  B.,  Political  Science 
Quarterly,  XX,  203-22. 


CHAPTER  IV 

RELATIONS  BETWEEN  STATE  AND  FEDERAL  GOV- 
ERNMENTS 

15.    NEW  FIELDS  FOR  FEDERAL,  LEGISLATION. 

Since  the  adoption  of  the  Constitution  commerce  has  developed 
to  a  degree  and  in  a  way  undreamed  of  in  that  day  and  has  be- 
come inextricably  involved  with  the  domestic  industry  of  the  several 
states.  Hence  Congress  in  regulating  interstate  commerce  and  carry- 
ing out  other  provisions  of  the  Constitution  has  been  led  to  the 
enactment  of  measures  which  a  century  ago,  if  they  could  have  been 
foreseen  at  all,  would  very  probably  have  been  thought,  under  the 
conditions  then  existing,  to  have  been  proper  subjects  for  State  con- 
trol. The  extent  to  which  the  National  Legislature  has  gone  or  is 
likely  to  go  in  this  direction  is  very  well  illustrated  by  the  record  of 
measures  considered  at  a  recent  session  of  Congress:  [1900]. 

In  the  President's  last  annual  message  there  were  no  less 
than  eight  specific  recommendations  involving  the  exercise 
of  new  functions,  or  the  assumption  of  new  tasks,  by  the 
Federal  Government.  And  if  a  list  were  compiled  of  the 
suggestions  made  along  the  same  line  by  bills  now  before 
Congress  or  resolutions  of  public  bodies — leaving  out  "freak" 
bills  and  constitutional  amendments — it  would  probably  be 
twice  as  long. 

Railroad  rate-making  happens  to  be  the  most  conspicuous 
proposal  just  at  present.  This  is  one  of  the  things  the 
National  Government  is  asked  to  do  because,  unless  it  under- 
takes the  task,  it  will  not  be  performed  at  all.  The  States 
could  not  secure  the  same  results  even  if  they  co-operated  to 
the  full.  The  same  may  be  said,  of  course,  regarding  the 
proposed  regulation  of  express  companies  and  national  super- 
vision of  insurance.  Other  measures  widely  differing  in 

74 


STATE  AND  FEDERAL  RELATIONS  75 

subject  matter,  fall  into  the  same  general  class,  because  they 
propose  that  the  government  shall  do  something  not  done  by 
anybody  at  present,  or  at  least  not  done  efficiently.  Such 
for  instance  are  the  protection  of  Niagara  Falls — in  which 
the  Federal  power  over  boundaries  is  invoked — the  preser- 
vation of  the  Great  Lake  fisheries  by  international  agree- 
ment, and  Commissioner  Sargent's  much- discussed  scheme 
for  deflecting  the  stream  of  immigrants  to  those  sections  of 
the  country  where  they  are  wanted. 

Next  may  be  classed  the  proposals  which  are  urged  on  the 
ground  that  the  Federal  Government  should  step  in  merely 
to  give  the  several  states  a  chance  to  regulate  their  own 
affairs.  These,  for  the  most  part,  grow  out  of  changed  con- 
ditions. Centers  of  production  and  consumption  have  come 
to  be  so  far  apart,  transportation  so  easy,  and  travelling  so 
incessant,  that  local  regulations,  once  amply  sufficient,  have 
been  found  in  many  lines,  to  be  little  better  than  farcical.  The 
Pure  Food  bill  owes  much  of  its  backing  to  the  fact  that  a 
State  with  good  food  laws  is  now  at  the  mercy  of  one  with 
bad  laws  or  none,  which  can  flood  it  with  impure  products; 
the  prohibition  communities  never  cease  asking  for  con- 
gressional action  that  will  undo  the  "original  package"  deci- 
sions and  help  the  State  authorities  to  stop  liquor  in  transit 
the  moment  it  crosses  the  line.  .  .  . 

Finally  should  be  mentioned  those  instances  in  which 
national  action  is  urged  chiefly  to  secure  uniformity  of  system 
in  some  department.  The  practical  restriction  of  naturaliza- 
tion to  the  Federal  Courts,  is  one  example,  and  another 
the  partly  completed  extension  of  national  trade-mark  legis- 
lation, while  the  national  child-labor  law,  strongly  pushed  by 
a  state  labor  commissioner  recently,  though  without  citation 
of  the  constitutional  provision  which  would  authorize  it,  is 
a  type  of  the  many  benevolent  measures  so  advocated. 

Efficiency  has  come  to  be  the  controlling  argument  in  most 
of  these  cases.  Our  National  Government  has  a  way  of 
getting  things  done — not  economically,  perhaps,  but  effec- 
tively— that  the  States  simply  stand  by  and  envy.  The 


76  READINGS  IN  CIVIL  GOVERNMENT 

illicit  liquor-seller  who  defies  the  sheriff  and  the  Chief  of 
Police,  would  not  dare  to  run  for  a  week  without  paying  his 
Federal  tax.  The  present  advocacy  of  Federal  control  as  a 
general  panacea  is  really  not  so  much  an  indication  of  chang- 
ing Constitutional  views,  as  a  tribute  to  the  relatively  effec- 
tive way  in  which  power  is  applied  from  Washington. 

16.    THE  CONSTITUTION  AND  THE  NEW  FEDERALISM. 

That  this  extension  of  the  powers  of  the  central  government  is  in 
violation  of  the  true  spirit  of  the  Constitution  and  is  dangerous  to 
republican  institutions  is  the  belief  of  many  writers  upon  this  sub- 
ject. Professor  Henry  Wade  Rogers  gives  clear  expression  to  this 
view  in  the  following  article:  [1908]. 

The  founders  of  the  Republic  established  the  Constitution 
upon  the  fundamental  principles  of  the  absolute  autonomy 
of  the  States,  except  in  respect  to  the  interests  common  to 
the  entire  country.  They  realized  to  the  full  extent  that 
upon  no  other  principle  would  it  be  possible  to  maintain  a 
republican  government  over  a  country  even  as  large  as  ours 
then  was. 

Once  the  question  was  whether  the  States  would  destroy 
the  National  Government.  Now  the  question  seems  to  be 
whether  the  National  Government  shall  be  permitted  to 
destroy  the  States.  It  was  the  fear  that  that  question 
might  sometime  arise  which  led  Samuel  Adams  and  John 
Hancock  in  Massachusetts,  George  Clinton  in  New  York,  and 
Patrick  Henry  in  Virginia  to  withhold  for  so  long  their  assent 
to  the  ratification  of  the  Constitution.  But,  under  the 
Constitution,  the  States  are  as  indestructible  as  the  Union. 
The  Constitution  looks  to  an  indestructible  Union  composed 
of  indestructible  States.  Actual  abolition  of  the  States  is 
impossible.  There  are,  however,  forces  in  operation  which 
seek  to  reduce  the  States  to  administrative  departments  like 
those  of  France.  There  is  an  increasing  tendency  to  regard 
a  State  as  a  mere  geographical  expression,  rather  than  a 
political  division  of  the  country.  There  ought  to  be,  in 


STATE  AND  FEDERAL  RELATIONS  77 

every  part  of  our  country,  not  only  a  revival  of  knowledge 
of  the  Constitution,  but  a  careful  study  and  weighing  of  the 
opinions  of  the  Fathers  as  they  found  expression  in  the  de- 
bates in  the  Convention  which  framed  the  Constitution,  and 
in  the  Conventions  in  the  several  States  which  ratified  that 
instrument. 

There  is  a  constitutional  and  wholesome  doctrine  of  State 
rights  the  maintenance  of  which  is  of  the  utmost  impor- 
tance to  the  continued  welfare  of  the  Republic.  In  the  name 
of  State  rights  certain  extreme  and  disorganizing  views  were 
at  one  time  promulgated,  which  the  country  received  with 
disfavor.  In  our  day,  nullification  is  recognized  as  folly 
and  secession  as  a  crime.  But  it  has  been  said  that,  because 
this  folly  and  this  crime  were  committed  in  the  name  of  the 
State  rights  it  would  be  folly  to  infer  that  the  name  may 
not  have  a  good  meaning  and  represent  a  useful  thing. 

If  the  Government  is  to  endure,  the  people  must  stead- 
fastly maintain  two  essential  and  fundamental  principles; 
the  first  is,  that  the  National  Government  possesses  all  the 
powers  granted  to  it  in  the  Constitution  either  expressly  or 
by  necessary  implication;  and  the  second  is,  that  the  States 
possess  all  governmental  powers  not  granted  to  the  General 
Government  or  reserved  to  the  people. 

We  are  threatened  with  a  revival  of  Federalism — Federal- 
ism that  is  more  extreme  and  radical  than  the  leaders  of  the 
old  Federal  party  ever  countenanced.  The  argument  pro- 
ceeds on  the  assumption  that  the  States  have  failed  to  perform 
their  duty  properly,  so  that  great  evils  have  grown  up  which 
the  States  cannot  or  will  not  remedy,  and  from  which  we 
should  have  been  free  if  only  the  Federal  Government  had 
possessed  the  authority  and  not  the  States. 

That  the  evils  exist  is  conceded.  That  the  States  have  not 
done  their  full  duty  is  also  conceded.  But  that  the  Federal 
Government  would  have  done  better  is  a  mere  assumption, 
and  one  I  am  not  prepared  to  accept.  Congress  has  now  in  the 
Territories  and  District  of  Columbia  all  the  powers  which 
the  State  Governments  possess;  yet  the  legislation  respecting 


78  READINGS  IN  CIVIL  GOVERNMENT 

the  corporations  which  Congress  has  enacted  has  not  been  bet- 
ter than  the  legislation  of  the  States  on  the  same  subject. 
The  laws  of  Congress  have  not  secured  publicity  of  accounts, 
nor  prevented  over-capitalization  and  stock-watering,  and  an 
adequate  system  of  inspection  has  not  been  established  over 
Federal  corporations.  The  Union  Pacific  Railroad  with  which 
Congress  has  been  concerned,  had,  upon  its  reorganization  in 
1897,  a  share  capital  of  $136,000,000,  which  at  market  price 
was  worth  only  $54,000,000,  showing  an  estimated  over- 
capitalization of  $81,330,000.  Congress  has  provided  for  the 
examination  of  National  Banks.  But  the  inspection  of 
National  Banks  is  not  superior  to  the  system  which  Massa- 
chusetts has  established  for  the  inspection  of  its  State  banks. 
The  laws  of  Massachusetts  regulating  insurance  companies  is 
as  good  as,  and  in  some  respects  better  than,  that  which  the 
advocates  of  a  Federal  law  endeavored  to  get  Congress  to 
enact  a  year  or  two  ago.  And  about  the  same  time  the  Presi- 
dent was  declaring  in  messages  to  Congress  that  the  States 
were  incompetent  to  deal  with  the  problem  of  ir.surance  the 
State  of  New  York,  under  the  guidance  of  its  present  Gov- 
ernor, enacted  an  admirable  piece  of  legislation,  superior  to 
that  which  a  president  of  a  New  Jersey  insurance  company, 
himself  a  Senator,  was  seeking  to  impose  upon  Congress, 
under  the  fallacious  assumption  that  insurance  was  inter- 
state commerce,  the  Supreme  Court  of  the  United  States  to 
the  contrary  notwithstanding.  During  the  present  year, 
the  same  State,  under  the  direction  of  the  same  Governor, 
has  enacted  a  Public  Utilities  law  which,  as  a  piece  of  con- 
structive legislation  intended  to  curb  the  public  service  cor- 
porations, is  in  advance  of  anything  which  has  come  from 
Congress  respecting  the  corporations  it  has  created,  or  over 
which  it  has  control  as  the  legislature  for  the  Territories  or 
the  District  of  Columbia. 

The  tendency  to  take  their  domestic  affairs  from  the  con- 
trol of  the  State  is  shown  by  the  agitation  in  favor  of  a 
national  incorporation  law.  It  is  assumed  that  the  power  to 
regulate  commerce  includes  the  right  to  regulate  the  corpora- 


STATE  AND  FEDERAL  RELATIONS  79 

tion  which  is  engaged  in  commerce.  But  if,  under  its  power 
to  regulate  commerce,  Congress  can  assume  control  over  all 
corporations  which  engage  in  interstate  commerce,  it  is 
difficult  to  see  why  it  has  not  an  equal  right  to  assume  a 
like  control  over  all  partnerships  that  do  any  interstate  busi- 
ness, as  well  as  over  all  individuals  whose  business  is  of  a 
similar  nature.  In  this  way  Congress  can  take  to  itself  juris- 
diction over  a  very  large  part  of  the  business  of  the  country, 
withdrawing  from  the  control  of  the  States  what  has  always 
been  supposed  to  be  within  their  peculiar  province,  and  work- 
ing a  fundamental  change  in  the  character  of  the  Govern- 
ment itself.  It  may  be  very  seriously  questioned  whether 
the  mere  fact  that  a  corporation  or  a  partnership  is  engaged 
in  interstate  commerce  affords  any  sound  legal  reason  for 
assuming  that  Congress  has  the  right  to  exercise  an  exclusive 
jurisdiction  over  every  such  corporation  and  partnership  or 
individual  who  engages  in  interstate  commerce,  even  though 
the  interstate  commerce  may  be  but  a  part  of  the  business  of 
guch  corporation  or  partnership,  as  they  may  be  likewise 
engaged  in  intrastate  commerce.  So  that  if  the  regulation 
of  corporations  is  a  regulation  of  interstate  commerce  it  may 
be  a  regulation  of  intrastate  commerce  as  well. 

If  Congress  has  jurisdiction  over  every  corporation  which 
to  any  extent  engages  in  interstate  commerce,  what  is  there 
to  prevent  Congress  from  declaring  that  the  vast  properties 
which  these  corporations  control  shall  not  be  taxed  by  the 
State  Governments  without  the  consent  of  Congress?  The 
States  cannot  tax  National  Banks  except  to  the  extent  author- 
ized by  the  national  banking  laws.  If  all  corporations  en- 
gaged in  interstate  commerce  are  to  be  compelled  to  incor- 
porate under  a  national  incorporation  law,  why  may  not 
Congress  prohibit  the  States  from  taxing  such  corporation 
or  the  properties  which  they  own  ?  It  is  nothing  to  the  pur- 
pose to  say  that  Congress  would  never  exercise  the  power. 
The  fact  that  it  could  exercise  the  power,  and  might  some- 
time do  so  to  a  greater  or  less  extent,  is  one  not  lightly  to 
be  lost  sight  of,  as  these  corporations  own  a  very  large  por- 


80  READINGS  IN  CIVIL  GOVERNMENT 

tion  of  the  wealth  of  the  country,  the  withdrawal  of  which 
from  the  taxing  power  of  the  States  would  be  most  mischie- 
vous, crippling  the  power  of  the  States  and  imposing  new 
burdens  of  taxation  on  the  individual  citizen. 

The  disposition  to  extend  the  power  of  Congress  beyond 
its  constitutional  limits  and  unduly  to  dimish  the  proper 
legislative  authority  of  the  States  is  further  exemplified  in 
the  passage  by  Congress  in  1906  of  the  Employer's  Liability 
Act.  Congress  assumed  that,  under  its  power  to  regulate 
commerce,  it  could  pass  the  act  and  apply  it  to  all  employes  of 
common  carriers  engaged  in  interstate  commerce,  even  though 
such  employes  rendered  no  service  in  the  transportation  of 
interstate  commerce,  such  as  engineers  of  local  trains,  section 
hands,  mechanics  in  car  and  machine  shops  and  clerks  in 
offices.  The  Supreme  Court  in  the  Employer's  Liability  cases 
declared  the  law  unconstitutional  and  denied  the  contention 
of  the  Attorney-general  that  where  one  engages  in  interstate 
commerce  one  thereby  comes  under  the  power  of  Congress  as 
to  all  his  business  and  may  not  complain  of  any  regulation 
which  Congress  may  choose  to  adopt. 

The  extremes  to  which  advocates  of  the  New  Federalism  go 
is  shown  in  the  proposal  to  enact  the  Beveridge  child-labor 
law  and  make  it  applicable  throughout  the  United  States. 
The  Supreme  Court  has  decided  that  the  power  to  regulate 
commerce  does  not  confer  power  to  regulate  manufactures, 
as  commerce  and  manufactures  are  not  synonymous.  But 
the  advocates  of  the  bill  asserted  that  the  Government  has 
the  power  to  shut  out  from  interstate  business  any  article 
manufactured  in  violation  of  the  Act.  To  assume  that  Con- 
gress can  do  this  is  to  assume  that  it  can  regulate  the  hours 
of  labor,  the  wages  paid  and  the  prices  charged  by  any  factory 
in  the  United  States  for  goods  which  are  to  find  their  way 
into  interstate  commerce.  To  assume  that  the  Congress  has 
any  such  power  is  to  assume  that  American  statesmen  and 
American  lawyers  for  a  hundred  and  twenty  years  have  not 
understood  the  Constitution  of  this  country  aright. 

The  excuse  made  for  bringing  a  bill  of  this  kind  before 


STATE  AND  FEDERAL  RELATIONS  81 

Congress  was  that  the  States  had  not  discharged  their  full 
duty  in  the  matter.  But  if  half  the  States  have  not  enacted 
a  child-labor  law,  they  are  no  more  delinquent  than  Congress. 
No  one  questions  that  Congress  has  a  Constitutional  right 
to  make  such  a  law  applicable  to  the  District  of  Columbia 
and  for  the  Territories.  It  has,  however,  never  done  so,  and 
the  same  condemnation  which  its  advocates  pronounce  upon 
the  States  which  have  failed  to  enact  such  laws  is  applicable 
to  the  Congress  for  a  similar  neglect  within  the  limits  of  its 
unquestioned  jurisdiction.  Undoubtedly  there  should  be  such 
a  law  in  each  State,  and  one  already  exists  in  a  majority  of 
the  States. 

Until  recently,  it  had  always  been  supposed  that  the  Federal 
Government  had  no  possessive  title  to  the  water  flowing  in 
navigable  streams,  nor  to  the  land  composing  their  beds  and 
shores.  It  had  not  been  thought  that  Congress  could  grant 
any  absolute  authority  to  anyone  to  use  and  occupy  such 
water  and  land  for  manufacturing  and  industrial  purposes. 
The  theory  has  been  that  the  Federal  Government  controlled 
navigable  streams  for  the  single  purpose  of  preventing  obstruc- 
tion to  navigation.  The  States  have  granted  the  use  of 
these  streams  for  power  or  irrigation  purposes,  and  their 
action  has  always  been  understood  to  be  subject  to  be 
reviewed  by  Congress,  but  only  to  the  extent  of  determining 
whether  that  which  the  States  had  authorized  would  consti- 
tute an  interference  with  commerce.  Now,  apparently  un- 
mindful of  an  impressive  line  of  decisions  of  the  courts  which 
assert  the  doctrine  that  the  waters  of  a  river  and  the  waters 
of  the  arms  of  the  sea  belong  to  the  States  and  not  to  the 
Federal  Government,  the  President  recently  sent  a  message 
to  Congress  asserting  a  right  in  the  General  Government  to 
exact  tolls  for  the  use  of  the  waters  in  navigable  streams, 
and  of  his  intention  to  veto  all  bills  granting  water-power 
rights  which  do  not  authorize  the  President  or  the  Secretary 
concerned  to  collect  such  tolls  as  he  may  find  to  be  just  and 
reasonable.  A  Republican  Senator  properly  characterized 
the  doctrine  as  "the  most  far-reaching  and  over-reaching 

6 


82  READINGS  IN  CIVIL  GOVERNMENT 

claim  of  power  that  was  ever  made  in  a  government. ' '  And, 
he  added:  "The  Kings  and  Emperors  claim  no  such  rights 
in  their  lands." 

17.    STATE  VS.  FEDERAL  CONTROL. 

The  reasons  impelling  the  Federal  Government  to  enter  into  and 
assume  control  of  what  Professor  Rogers  holds  to  be  the  proper 
sphere  of  State  legislation  are  thus  set  forth  by  Judge  Charles  F. 
Amidon:  [1907]. 

There  never  was  a  time  when  the  interpretation  of  the 
constitution  required  a  more  careful  consideration  of  living 
conditions  than  to-day.  Within  the  last  fifty  years  economic 
forces  have  been  introduced  into  our  life  that  are  as  revolu- 
tionary of  pre-existing  conditions  as  the  introduction  of  gun- 
powder was  of  the  state  of  feudalism.  Seward's  statement 
in  the  debate  of  1850  that  "Commerce  is  the  god  of  boundaries 
and  no  man  now  living  can  tell  its  ultimate  decree"  is  far 
more  true  at  present  than  when  it  was  uttered.  When  the 
constitution  was  adopted  the  unit  of  our  social  and  business 
life  was  the  commonwealth.  With  the  exception  of  the 
foreign  and  coasting  trade,  the  commerce  and  industry  of 
each  state  was  confined  to  its  own  borders.  The  union  was 
political  instead  of  industrial  or  commercial.  To-day  our 
industry  and  our  commerce  are  national.  They  are  made 
aware  of  state  lines  only  by  conflicting  and  often  narrowly 
selfish  enactments.  The  unite  of  commercial  and  industrial 
organization  extend  to  many  states,  often  to  the  entire  nation. 
Instead  of  being  required  to  obey  one  master,  busines- 
compelled  to  obey  many.  Coincident  with  this  enlargement 
of  business  enterprise  to  embrace  different  states,  has  occurred 
a  revolution  in  state  activity.  During  the  first  half  of  the 
Nineteenth  Century  the  doctrine  of  laissez-faire  was  the  fun- 
damental principle  of  government.  The  state  left  commerce 
and  industry  to  private  control.  To-day  that  is  all  changed. 
Government  is  now  present  in  all  lines  of  business.  When 
the  state  regulated  but  little,  business  was  not  much  con- 


STATE  AND  FEDERAL  RELATIONS  83 

cerned  who  did  the  regulating.  But  now  that  all  govern- 
ments are  competing  in  their  zeal  for  regulation,  whether 
one  government  or  many,  the  nation  or-  the  states,  shall  do 
the  regulating,  becomes  a  matter  of  paramount  importance. 
These  changed  conditions  in  our  actual  life  compel  a  recon- 
sideration of  our  divided  governmental  authority  to  see  what 
now  belongs  to  the  nation,  and  what  to  the  states.  The 
problem  is  not  the  same  as  it  was ;  it  cannot  be  answered  by 
reading  history  or  studying  precedents. 

The  new  condition  has  manifested  itself  most  conspicuously 
in  two  fields,  the  railroad  and  the  interstate  industrial  cor- 
poration. At  the  beginning  the  railroads  were  local.  There 
was  a  time  when  in  making  a  shipment  of  freight  from  New 
York  to  Buffalo,  at  least  three  different  bills  of  lading 
were  required.  Now  five  great  systems  embody  more  than 
three-fourths  of  the  total  mileage  of  the  country,  and  the 
work  of  consolidation  is  still  in  progress.  There  are  no  longer 
state  roads,  but  all  are  instruments  of  interstate  commerce. 
Actual  statistics  are  wanting  but  persons  in  a  position  to 
know  are  of  the  opinion  that  the  local  business  of  the  rail- 
roads does  not  exceed  fifteen  per  cent,  of  their  entire  traffic. 
In  a  case  tried  in  one  of  our  western  states  a  few  years  ago, 
it  was  judicially  found  that  the  local  business  there  involved 
amounted  to  less  than  three  per  cent.  In  the  face  of  these 
conditions,  it  is  impossible  to  maintain  over  common  carriers 
the  manifold  control  of  the  different  states  and  the  federal 
government. 

There  is  no  way  in  which  local  business  can  be  separated 
from  through  business.  The  same  road-bed  serves  both ;  both 
are  carried  in  the  same  train  and  by  the  same  crew.  Back 
of  every  schedule  of  rates  prescribed  by  government  is  the 
question,  are  those  rates  reasonably  compensatory?  Under 
our  present  system  that  question  as  to  state  rates  must  be 
decided  solely  upon  local  business,  and  as  to  interstate  rates 
solely  upon  interstate  business.  The  court  cannot  look  to  the 
entire  traffic  in  judging  of  the  reasonableness  of  either. 
While  it  is  possible  to  ascertain  what  revenue  is  derived  from 


84  EEADINGS  IN  CIVIL  GOVERNMENT 

each  class,  it  is  absolutely  impossible  thus  to  distribute  the 
cost  of  operation  and  maintenance.  The  evidence  upon  that 
subject  is  wholly  speculative  and  conjectural,  consisting 
entirely  of  opinion  testimony  given  by  parties  having  a  vital 
interest  in  the  result  of  the  litigation.  In  actual  operation 
the  railroads  do  not,  and  cannot  keep  the  two  kinds  of  com- 
merce separate.  Why  then  should  the  law  attempt  to  divide 
that  which  in  actual  life  is  a  unit  and  indivisible?  .  .  . 

It  is  vain  to  appeal  to  states,  as  did  Secretary  Root  in  his 
New  York  address,  to  subordinate  local  advantage  to  the  gen- 
eral welfare.  Our  whole  history  is  a  confirmation  of  the  state- 
ment of  Mr.  Pinckney  in  the  constitutional  convention  that 
"States  pursue  their  interests  with  less  scruple  than  indi- 
viduals. "  They  exhibit  all  that  lack  of  conscience  charac- 
teristic of  those  who  exercise  delegated  power.  As  Justice 
Miller  points  out  in  his  lectures  on  the  constitution,  had  it 
not  been  for  the  dominant  authority  of  the  central  govern- 
ment, the  general  welfare  would  have  been  as  completely 
sacrificed  to  local  selfishness  under  the  constitutijn  as  it  was 
under  the  articles  of  confederation.  What  states  require  is 
not  exhortation  but  authority. 

The  situation  in  the  field  of  industry  presents  the  same 
general  features.  To  abolish  local  control  over  matters  ex- 
tending outside  of  the  state  was  the  origin  not  only  of  the 
article  conferring  power  on  the  national  government  to  regu- 
late commerce  among  the  states,  but  also  of  those  provisions 
which  forbid  states  to  lay  imposts  or  duties  on  exports  or 
imports,  and  which  secure  to  the  citizens  of  each  state  the 
privileges  and  immunities  of  citizens  of  the  several  states. 
These  restrictions  were  placed  in  the  constitution  not  so  much 
that  men  might  be  free,  as  that  national  commerce  and  indus- 
try might  be  free.  They  have  been  largely  nullified  in 
actual  life  by  the  fact  that  business  is  now  carried  on  by 
corporations  instead  of  persons.  When  the  constitution 
was  adopted  only  twenty-one  corporations  had  been  formed 
in  the  United  States.  These  were  mainly  for  the  construction 


STATE  AND  FEDERAL  RELATIONS  85 

of  canals  and  turnpikes.     There  was  but  one  bank  and  two 
trading  companies.     .     .     . 

As  business  agencies  corporations  had  no  part  either  in  life 
or  thought,  consequently  they  had  no  place  in  the  constitu- 
tion. The  Supreme  Court  has  held  that  they  are  not  citizens 
within  the  meaning  of  the  Fifth  Amendment,  and  that  each 
state  may  either  wholly  exclude  them,  or  impose  as  conditions 
of  their  entering  or  remaining  in  the  state  such  terms  as  local 
policy  or  interest  may  suggest.  The  result  is  that  business 
which  was  intended  to  be  free,  has  in  fact  become  subject  to 
local  authority.  The  abuses  of  corporate  organization  and 
management  have  heretofore  commended  this  exercise  of  local 
control.  Ultimately,  however,  we  shall  become  increasingly 
aware  of  its  injustice  and  folly.  Business  cannot  be  con- 
ducted in  this  century  except  through  the  agency  of  corpora- 
tions; but  the  very  enlargement  of  that  agency  has  caused 
industry,  the  same  as  commerce,  to  overleap  the  bounds  of 
states,  and  thus  become  subject  to  governments  whose  only 
interest  in  them  is  that  of  the  publican.  "Federal," 
"National,"  ''Union,"  "United  States,"  "International," 
"American,"  these  terms  find  a  place  in  the  names  of  the 
corporations  that  are  carrying  on  our  large  business  enter- 
prises and  are  not  mere  high-sounding  titles,  but  are 
truly  indicative  of  the  scope  of  the  business  conducted. 
They  have  taken  national  titles  because  their  business  is 
national  and  international.  While  engaged  in  the  prepara- 
tion of  this  paper  I  employed  three  young  men  in  different 
libraries  to  examine  and  summarize  state  laws  passed  since 
1890,  directed  against  foreign  corporations  solely  upon  the 
ground  of  their  alienage.  My  purpose  was  to  institute  a  com- 
parison between  laws  of  that  character  now  in  force,  and 
discriminatory  statutes  passed  by  the  several  states  under  the 
articles  of  confederation.  But  the  mass  of  material  turned  in 
by  these  investigators  was  so  great  as  to  surpass  any  leisure 
at  my  command  for  its  study  and  classification.  The  reports, 
however,  leave  no  room  for  doubt  that  the  laws  now  in  force 


86  HEADINGS  IN  CIVIL  GOVERNMENT 

are  both  more  vicious  in  character  and  varied  in  form  than 
were  those  of  the  earlier  period.  At  that  time  discrimina- 
tion was  confined  in  the  main  to  taxation  by  states  having 
ports  of  entry  against  those  who  had  them  not.  To-day 
they  embrace  not  only  double,  and  frequently  manifold  taxa- 
tion, but  the  thousand  forms  of  regulation  which  recent 
governmental  activity  in  the  field  of  business  has  developed. 
A  condition  which  was  then  deemed  sufficient  to  cause  the 
framing  and  adoption  of  the  constitution  ought  now  to  be 
adequate  to  compel  the  exercise  of  the  power  which  the  con- 
stitution vested  in  the  federal  government  for  the  very  pur- 
pose of  controlling  such  conditions. 

How  far  may  the  national  government  go  in  the  control 
of  those  matters  which  have  become  in  fact  national?  The 
situation  fits  exactly  the  terms  of  the  resolution  passed  in  the 
convention  that  framed  the  constitution,  and  which  was  the 
source  of  all  the  powers  and  restrictions  embodied  in  that 
instrument.  It  presents  a  case  "to  which  the  separate  states 
are  incompetent  and  in  which  the  harmony  of  the  United 
States  may  be  interrupted  by  the  exercise  of  individual  legis- 
lation.'* As  to  railroads  there  is  no  more  reason  why  they 
should  be  subject  to  a  divided  authority  than  there  is  in  the 
case  of  navigation.  There  will,  of  course,  be  in  the  one 
case  as  in  the  other,  local  matters  that  can  be  best  dealt  with 
by  local  authority.  But  as  to  all  that  affects  them  as  com- 
mercial agencies,  whether  that  commerce  be  local  or  inter- 
state, the  railroad  is  a  unit;  its  activities  are  national,  and 
it  ought  to  be  subject  solely  to  national  authority.  Divided 
control  is  inefficient  in  protecting  the  public,  and  grossly  un- 
just in  the  burdens  which  it  places  upon  the  carrier.  Dur- 
ing the  last  winter  there  were  passed  in  the  states  west  of 
the  Mississippi  River  one  hundred  and  seventy-eight  statutes 
dealing  directly  with  transportation  and  its  instrumentalities. 
The  number  of  such  statutes  now  in  force  throughout  the 
entire  country  extends  well  into  the  thousands.  They  are 
conflicting,  oppressive,  inefficient.  They  seldom  represent 
intelligent  investigation,  but  in  the  main  have  had  their  origin 


STATE  AND  FEDERAL  RELATIONS  87 

in  agitation,  often  in  popular  frenzy.  State  legislatures 
have  not  yet  learned  that  due  process  of  legislation,  like 
due  process  of  law,  proceeds  upon  inquiry,  and  legislates 
only  after  hearing.  Protection  to  the  public  and  justice  to 
the  carrier  alike  unite  in  the  demand  for  a  single  govern- 
mental control.  The  power  under  the  commerce  clause  of 
the  constitution  is  plain.  The  decisions  of  the  Supreme  Court 
have  placed  that  subject  beyond  the  realm  of  controversy. 
If  the  railroad  as  an  instrument  of  commerce  can  only  be 
dealt  with  justly  and  efficiently  by  a  single  authority  the 
federal  government  may  assert  and  maintain  its  exclusive 
jurisdiction.  Regulation  is  now  inefficient  because  divided. 
If  the  federal  government  shall  take  exclusive  control,  it  will 
then  be  responsible  alone  for  such  a  control  as  shall  be  both 
efficient  and  just.  Public  opinion  will  have  a  single  point 
for  its  direction,  and  will  not  be  dissipated  among  many  con- 
flicting authorities.  The  subject  does  not  demand  separate 
rules  for  the  separate  states.  Their  action  refutes  such  a 
doctrine.  By  the  legislation  of  the  past  winter  Virginia  and 
Ohio,  Pennsylvania  and  Minnesota  are  combined  in  the  same 
passenger  rate,  though  they  vary  as  five  to  one,  in  density 
of  population  and  travel.  The  subject  is  national,  and  the 
federal  government  with  its  national  outlook  can  by  organized 
investigation  and  accumulated  experience  best  acquire  the 
skill  and  knowledge  necessary  for  its  just  and  efficient  regula- 
tion. .  .  . 

Our  great  corporations  are  now  national  in  their  character 
and  national  and  international  in  the  scope  of  their  opera- 
tions. To  regulate  their  formation  is  one  of  the  most  direct 
and  efficient  means  of  regulating  their  activities.  For  forty- 
five  states  to  create  corporations  and  the  national  govern- 
ment to  regulate  their  most  important  business  cannot  fail  to 
result  in  inefficiency  and  conflict.  Hitherto  interests  to  be 
regulated  have  found  advantage  in  the  dual  form  of  authority. 
It  has  enabled  them  to  assert  whenever  either  authority 
attempted  their  regulation  that  the  power  properly  belonged 
to  the  other  authority.  We  have  now  arrived  at  a  state  of 


88  READINGS  IN  CIVIL  GOVERNMENT 

knowledge  and  publicity  which  makes  this  kind  of  shuffling 
impossible.  The  nature  of  the  subject  to  be  regulated  and  not 
the  shifting  desires  of  the  interests  concerned  must  determine 
the  place  of  authority. 

Our  first  great  conflict  between  the  states  and  the  nation 
was  waged  over  the  subject  of  banking  and  finance.  No 
sooner  were  we  started  under  the  constitution  than  the  need 
of  a  national  agency  in  that  field  was  discovered.  But  the 
local  jealousy  of  the  states  prevented  its  establishment  for 
more  than  seventy-five  years.  During  that  period  we  were 
subject  to  all  the  injury  and  confusion  erf  wild-cat  banking 
under  state  authority.  Banking  and  finance,  however,  were 
not  more  national  at  that  time  than  commerce  and  industry 
have  now  become,  and  the  same  conflict  is  again  presented 
in  this  new  field.  We  can  get  along  with  divided  authority 
to-day  on  these  subjects  just  as  we  got  along  with  state  bank 
notes.  This  nation  can  stand  almost  anything.  But  it  is  the 
duty  of  government  in  the  exercise  of  its  power  to  create  con- 
ditions which  are  not  simply  tolerable,  but  those  which  are 
most  conducive  to  the  general  welfare.  A  uniform  authority 
in  the  field  of  interstate  commerce  and  industry  will  be  found 
as  beneficent  to-day  as  it  was  discovered  to  be  in  the  field  of 
finance  and  banking  as  the  result  of  our  first  economic  conflict. 
The  problem  of  regulating  these  affairs  has  attained  its  present 
magnitude  largely  because  the  federal  government  has 
neglected  to  exercise  its  constitutional  power  over  the  subject 
in  the  course  of  its  development.  Until  the  interstate  com- 
merce act  was  passed  in  1887  the  negative  power  of  the  courts 
was  the  only  federal  control.  Even  by  them  till  1886  the 
states  were  sustained  in  their  authority  over  interstate  as  well 
as  domestic  rates  of  carriers.  The  truth  is  that  the  national 
government  has  so  long  neglected  its  powers  under  the  com- 
merce clause  of  the  constitution  that  now,  when  it  tardily 
takes  up  its  duties,  it  is  charged  by  the  states  with  usurpation. 


STATE  AND  FEDERAL  RELATIONS  89 

18.    THE   STATES   AND   THE   FEDEEAL   GOVERNMENT. 

Another  view  of  the  relation  between  the  States  and  the  Federal 
Government  and  a  possible  solution  of  the  difficulty  is  suggested  by 
President  Woodrow  Wilson.  Speaking  of  the  problem  of  States 
Rights,  he  says : 

And  now  the  question  has  come  upon  us  anew.  It  is  no 
longer  sectional,  but  it  is  all  the  more  subtle  and  intricate, 
all  the  less  obvious  and  tangible  in  its  elements,  on  that 
account.  It  involves,  first  or  last,  the  whole  economic  move- 
ment of  the  age,  and  necessitates  an  analysis  which  has  not 
yet  been  even  seriously  attempted.  Which  parts  of  the  many- 
sided  processes  of  the  nation's  economic  development  shall  be 
left  to  the  regulation  of  the  States,  which  parts  shall  be 
given  over  to  the  regulation  of  the  federal  government?  I 
do  not  propound  this  as  a  mere  question  of  choice,  a  mere  ques- 
tion of  statesmanship,  but  also  as  a  question,  a  very  funda- 
mental question,  of  constitutional  law.  What,  reading  our 
Constitution  in  its  true  spirit,  neither  sticking  in  its  letter  nor 
yet  forcing  it  arbitrarily  to  mean  what  we  wish  it  to  mean, 
shall  be  the  answer  of  our  generation,  pressed  upon  by  gigan- 
tic economic  problems  the  solution  of  which  may  involve  not 
only  the  prosperity  but  also  the  very  integrity  of  the  nation, 
to  the  old  question  of  the  distribution  of  powers  between 
Congress  and  the  States?  For  us,  as  for  previous  genera- 
tions, it  is  a  deeply  critical  question.  The  very  stuff  of  all 
our  political  principles,  of  all  our  political  experience,  is 
involved  in  it.  In  this  all  too  indistinctly  marked  field  of 
right  choice  our  statesmanship  shall  achieve  new  triumphs 
or  come  to  calamitous  shipwreck. 

The  old  theory  of  the  sovereignty  of  the  States,  which 
used  so  to  engage  our  passions,  has  lost  its  vitality.  The  war 
between  the  States  established  at  least  this  principle,  that  the 
federal  government  is,  through  its  courts,  the  final  judge  of 
its  own  powers.  Since  that  stern  arbitrament  it  would  be 
idle,  in  any  practical  argument,  to  ask  by  what  law  of  abstract 
principle  the  federal  government  is  bound  and  restrained.  Its 


90  READINGS  IN  CIVIL  GOVERNMENT 

power  is  "to  regulate  commerce  between  the  States,"  and  the 
attempts  now  made  during  every  session  of  Congress  to  carry 
the  implications  of  that  power  beyond  the  utmost  boundaries 
of  reasonable  and  honest  inference  show  that  the  only  limits 
likely  to  be  observed  by  politicians  are  those  set  by  the  good 
sense  and  conservative  temper  of  the  country. 

The  proposed  federal  legislation  with  regard  to  the  regula- 
tion of  child  labor  affords  a  striking  example.  If  the  power 
to  regulate  commerce  between  the  States  can  be  stretched  to 
include  the  regulation  of  labor  in  mills  and  factories,  it  can 
be  made  to  embrace  every  particular  of  the  industrial  organ- 
ization and  action  of  the  country.  The  only  limitations  Con- 
gress would  observe,  should  the  Supreme  Court  assent  to  such 
obviously  absurd  extravagancies  of  interpretation,  would  be 
the  limitations  of  opinion  and  of  circumstance. 

It  is  important,  therefore,  to  look  at  the  facts  and  to  under- 
stand the  real  character  of  the  political  and  economic  materials 
of  our  own  day  very  clearly  and  with  a  statesmanlike  vision, 
as  the  makers  of  the  Constitution  understood  the  conditions 
they  dealt  with.  If  the  jealousies  of  the  colonies  and  of  the 
little  States  which  sprang  out  of  them  had  not  obliged  the 
makers  of  the  Constitution  to  leave  the  greater  part  of  legal 
regulation  in  the  hands  of  the  States,  it  would  have  been 
wise,  it  would  even  have  been  necessary,  to  invent  such  a 
division  of  powers  as  was  actually  agreed  upon.  It  is  not,  at 
bottom,  a  question  of  sovereignty  or  of  any  other  political 
abstraction;  it  is  a  question  of  vitality.  Uniform  regulation 
of  the  economic  conditions  of  a  vast  territory  and  a  various 
people  like  the  United  States  would  be  mischievous,  if  not 
impossible.  The  statesmanship  which  really  attempts  it  is  pre- 
mature and  unwise.  Undoubtedly  the  recent  economic 
development  of  the  country,  particularly  the  development 
of  the  last  two  decades,  has  obliterated  many  bound- 
aries, made  many  interests  national  and  common,  which 
until  our  own  day  were  separate  and  local;  but  the  lines  of 
these  great  changes  we  have  not  yet  clearly  traced  or  studi- 
ously enough  considered.  To  distinguish  them  and  provide 


STATE  AND  FEDERAL  RELATIONS  91 

for  them  is  the  task  which  is  to  test  the  statesmanship  of 
our  generation;  and  it  is  already  plain  that,  great  as  they 
are,  these  new  combinations  of  interest  have  not  yet  gone  so 
far  as  to  make  the  States  mere  units  of  local  government. 
Not  our  legal  conscience  merely,  but  our  practical  interests 
as  well,  call  upon  us  to  discriminate  and  be  careful,  with 
the  care  of  men  who  handle  the  vital  stuff  of  a  great  constitu- 
tional government. 

The  United  States  are  not  a  single,  homogeneous  community. 
In  spite  of  a  certain  superficial  sameness  which  seems  to 
impart  to  Americans  a  common  type  and  point  of  view,  they 
still  contain  communities  at  almost  every  stage  of  develop- 
ment, illustrating  in  their  social  and  economic  structure  almost 
every  modern  variety  of  interest  and  prejudice,  following 
occupations  of  every  kind,  in  climates  of  every  sort  that  the 
temperate  zone  affords.  This  variety  of  fact  and  condition, 
these  substantial  economic  and  social  contrasts,  do  not  in  all 
cases  follow  state  lines.  They  are  often  contrasts  between 
region  and  region  rather  than  between  State  and  State.  But 
they  are  none  the  less  real,  and  are  in  many  instances  per- 
manent and  ineradicable.  .  .  . 

The  remedy  for  ill-considered  legislation  by  the  States,  the 
remedy  alike  for  neglect  and  mistake  on  the  part  of  their  sev- 
eral governments,  lies,  not  outside  the  States,  but  within  them. 
The  mistakes  which  they  themselves  correct  will  sink  deeper 
into  the  consciousness  of  their  people  than  the  mistakes  which 
Congress  may  rush  in  to  correct  for  them,  thrusting  upon  them 
what  they  have  not  learned  to  desire.  They  will  either  them- 
selves learn  their  mistakes,  by  such  intimate  and  domestic 
processes  as  will  penetrate  very  deep  and  abide  with  them  in 
convincing  force,  or  else  they  will  prove  that  what  might  have 
been  a  mistake  for  other  States  or  regions  of  the  country  was 
no  mistake  for  them,  and  the  country  will  have  been  saved 
its  wholesome  variety.  In  no  case  will  their  failure  to  correct 
their  own  measures  prove  that  the  federal  government  might 
have  forced  wisdom  upon  them. 


92  READINGS  IN  CIVIL  GOVERNMENT 

19.   EXTRADITION    OP    FUGITIVES    FROM    JUSTICE    BETWEEN    THE 

STATES. 

Under  authority  granted  by  the  Constitution,  Congress  in  1793 
passed  a  law  providing  for  the  extradition  of  fugitives  from  justice. 
This  law  is  still  in  force  and  Mr.  J.  S.  Wise  thus  explains  its  his- 
tory and  operation: 

Pursuant  to  this  obligation  the  Congress  has  enacted 
statutes  providing  for  the  extradition  from  one  State  to  an- 
other of  fugitives  from  justice.  These  Federal  statutes 
control  the  demand,  and  statutes  have  been  passed  in  all  the 
States  providing  measures  in  accordance  with  the  Federal 
laws.  In  the  first  case  of  extradition  presented  to  the  Supreme 
Court,  the  prisoner  was  indicted  in  Canada  and  requisition 
was  made  by  the  Canadian  government  on  the  governor  of 
Vermont,  who  undertook  to  deliver  him.  He  applied  for  a 
habeas  corpus  on  the  ground  that  such  a  delivery  could  only 
be  made  to  a  foreign  government  on  a  requisition  upon  the 
United  States,  and  that  the  United  States  would  not,  as  had 
been  shown  by  its  action  in  another  case,  honor  the  requisi- 
tion because  there  was  no  treaty.  The  Vermont  court  dis- 
missed the  writ,  and  the  Supreme  Court,  by  a  divided  court, 
sustained  the  action  of  the  State  Court.  In  another  case  it 
was  held  to  be  the  duty  of  the  governor  of  one  State,  on  the 
demand  of  the  governor  of  another  State,  and  the  production 
of  the  indictment,  duly  certified,  to  deliver  up  a  fugitive  from 
justice ;  that  the  function  of  the  former  is  merely  ministerial, 
and  that  he  has  no  right  to  exercise  any  discretionary  power; 
that  he  is  under  moral  obligation  to  perform  the  compact  of 
the  Constitution,  Congress  having  regulated  the  manner  of 
performance;  but  that  no  law  of  Congress  could  coerce  a 
State  officer  to  perform  his  duty,  and  a  motion  for  a  man- 
damus against  the  governor  was  denied.  And  again  it  was 
held  that  the  Federal  statute  demanding  surrender  of  a  fugi- 
tive from  justice  found  in  one  of  the  States  or  Territories,  to 
the  State  in  which  he  stands  accused,  applies  to  Territories 


STATE  AND  FEDERAL  RELATIONS  93 

as  well  as  States  and  embraces  every  offense  known  to  the 
law,  including  misdemeanors. 

In  one  case  a  man  charged  with  crime  in  Kentucky  fled 
to  West  Virginia.  A  requisition  issued  for  him.  While  the 
governor  of  West  Virginia  was  considering  his  extradition 
the  man  was  seized  in  West  Virginia,  forcibly  abducted  to 
Kentucky,  and  there  held  for  trial.  He  instituted  proceed- 
ings seeking  to  have  himself  returned  to  West  Virginia.  The 
Supreme  Court  held  that  there  was  no  mode  provided  by  the 
Constitution  or  laws  of  the  United  States,  by  which  Federal 
authority  could  restore  him  to  West  Virginia. 

And  a  fugitive  returned  to  a  demanding  State  has  no  im- 
munity from  other  indictments  against  him  by  the  State  from 
which  he  fled,  after  he  is  returned.  But  the  Supreme  Court 
has  said  that  to  extradite  a  man  on  one  charge  and  try  him  on 
another  is  dishonorable.  The  governor  of  a  State,  upon  whom 
demand  is  made  for  the  surrender  to  another  State  of  a  citizen 
who  is  charged  with  being  a  fugitive  from  justice,  may  refuse 
the  requisition  if  it  be  satisfactorily  shown  to  him  that  the 
accused  was  not  in  the  State  at  the  time  the  alleged  offense 
was  committed,  or  since,  for  in  that  case  the  fact  that  he  fled 
from  justice  is  negatived. 

From  the  foundation  of  the  government  and  notwithstand- 
ing the  absolute  power  of  Congress  to  regulate  the  terms  of 
surrender  of  fugitives,  the  governors  of  States  have  been  dis- 
posed to  show  independence  on  this  subject  of  honoring  re- 
quisitions. In  the  days  of  slavery  it  was  difficult  to  secure 
the  surrender  of  fugitive  slaves,  and  impossible  to  secure  the 
surrender  of  persons  charged  in  a  slave  State  with  having 
aided  slaves  to  escape  and  having  then  themselves  fled.  .  .  . 
In  some  States  the  executive,  before  honoring  the  requisition 
of  the  governor  of  the  demanding  State,  claims  the  right  to 
examine  the  indictment  upon  which  the  demand  is  based,  and 
to  determine  whether  it  is  in  due  form,  or  to  decide  whether 
it  charges  an  offense  punishable  under  the  laws  of  the  demand- 
ing State,  which  is  equivalent  to  deciding  a  demurrer  to  the 


94  READINGS  IN  CIVIL  GOVERNMENT 

indictment;  and  even  to  hear  testimony  to  determine  the 
question  of  probable  guilt  or  innocence.  A  notable  instance 
of  this  is  the  case  of  a  recent  governor,  indicted  for  com- 
plicity in  the  murder  of  his  political  rival,  who,  having  fled 
first  to  one  and  then  to  another  State,  was  demanded  by  the 
authorities  of  the  State  from  which  he  fled,  of  the  authorities 
of  both  States  in  which  he  sought  asylum,  but  has  been  pro- 
tected from  delivery.  Perhaps,  in  the  instance  cited,  it  was 
best  so,  but  the  better  opinion  is  that  if  a  crime  is  charged 
and  demand  is  made,  in  due  form,  accompanied  by  an  exem- 
plified copy  of  the  indictment,  the  duty  of  the  executive  upon 
whom  the  demand  is  made  is  to  surrender  the  accused  to  the 
demanding  State,  whether  he  may  think  him  properly  or  im- 
properly indicted,  innocent  or  guilty,  leaving  the  questions  of 
the  sufficiency  of  the  indictment  and  his  guilt  or  innocence  to 
be  determined  by  the  lawfully  constituted  authorities  of  the 
demanding  State  upon  his  trial  there. 

ADDITIONAL  READINGS 

1 — Federal  Control  of  State  Governments,  Willoughby,  W. 
W.f  The  American  Constitutional  System,  111-21. 

2— Federal  and  State  Powers,  Ibid.,  135-53. 

3— Inter-State  Relations,  Ibid.,  272-90. 

4 — The  Working  Relations  of  the  National  and  State  Gov- 
ernments, Bryce,  J.,  American  Commonwealth,  I,  325-41. 

5 — The  Increased  Control  of  State  Activities  by  Federal 
Courts,  Moore,  C.  A.,  Proceedings  of  the  American 
Political  Science  Association,  V,  64-73. 


CHAPTER  V 
THE  RIGHTS  AND  IMMUNITIES  OF  CITIZENSHIP 

20.   CITIZENSHIP    IN    THE    UNITED    STATES. 

When  the  Federal  Constitution  was  drawn  up  no  clear  definition 
of  United  States  citizenship  was  made.  Citizenship  in  some  one  of 
the  States,  of  course,  antedated  citizenship  in  the  United  States  and 
it  was  uncertain  to  which  authority  the  citizen  owed  primary  alle- 
giance, the  State  or  the  United  States.  This  remained  the  situation 
until  the  adoption  of  the  fourteenth  amendment.  The  effect  of 
this  amendment  upon  citizenship  in  the  United  States  is  explained  in 
the  following  paragraph  by  Mr.  Wm.  L.  Scruggs: 

Our  first  attempt  at  a  constitutional  definition  of  the 
phrase  "Citizen  of  the  United  States/'  was  made  after  a 
somewhat  stormy  experience  of  about  eighty  years.  I  allude, 
of  course,  to  the  Joint  Resolution  of  the  39th  Congress,  of 
June  16th,  1866,  proposing  what  is  now  known  as  the  Four- 
teenth Amendment.  It  was  subsequently  ratified  by  the  req- 
uisite number  of  States;  and,  on  the  21st  July,  1868,  was 
officially  proclaimed  as  an  integral  part  of  our  fundamental 
law.  The  first  section  of  that  Amendment  declares,  that 
"all  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside/'  And,  in  due 
course,  each  of  the  particular  States,  conforming  to  this 
definition,  so  amended  their  codes  as  to  declare,  in  substance, 
that  "all  citizens  of  the  United  States,  residing  in  the  State, 
are  citizens  of  the  State,"  thus  excluding,  by  plain  implica- 
tion, all  who  are  not  citizens  of  the  United  States. 

This  has  been  characterized  as  "a  revolution  in  our  form 
of  government."  It  was  not  quite  that.  But  it  was  a  turn- 

95 


96  READINGS  IN  CIVIL  GOVERNMENT 

ing  point  in  our  constitutional  and  political  history,  and 
marked  the  advent  of  a  new  era  in  the  evolution  of  American 
citizenship.  Up  to  that  time,  we  searched  in  vain  for  some 
clear  and  authentic  definition  of  the  familiar  but  doubtful 
phrase,  "Citizenship  of  the  United  States."  It  could  be 
found  neither  in  our  fundamental  or  statutory  law,  nor  in 
any  of  the  decisions  of  our  Supreme  Court.  Nor  could  it  be 
derived  from  the  concurrent  actions  or  ruling  of  any  two  of 
the  co-ordinate  departments  of  the  Government.  In  its  ele- 
ments and  its  details,  citizenship  of  the  United  States  was  as 
little  understood,  and  as  much  open  to  speculative  criticism, 
in  1861,  as  it  was  in  1787.  For  more  than  three-quarters  of 
a  century,  it  had  been  an  adjourned  question  whether  a  per- 
son could  be  a  citizen  of  the  United  States  at  all  except  as 
he  was  such  incidentally,  and  then  only  in  a  limited  or  quali- 
fied sense,  by  reason  of  his  being  a  citizen  of  one  of  the  par- 
ticular States.  It  was,  therefore,  an  open  question  whether 
the  ultimate  allegiance  of  the  citizen  was  due  to  the  State  or  to 
the  general  government.  Indeed,  Mr.  Calhoun  and  other  ex- 
ponents of  the  so-called  "Jeffersonian"  theory  of  the  Consti- 
tution, had  gone  so  far  as  to  contend  that  there  was  "no  such 
thing  as  citizenship  of  the  United  States  per  se";  that  a  per- 
son born  and  living  in  the  District  of  Columbia  or  other  Ter- 
ritory of  the  Union,  although  in  the  United  States  and  sub- 
ject to  its  jurisdiction,  was  not,  in  reality,  a  citizen  of  the 
United  States!  And,  absurd  as  this  proposition  now  seems,' 
it  had  never  been  fairly  met  by  any  adverse  decision  of  our 
Supreme  Court. 

The  Fourteenth  Amendment  settled,  as  it  was  intended  to 
settle,  this  vexed  question  at  once  and  forever.  It  established 
a  citizenship  of  the  United  States  that  is  wholly  independent 
of  State  lines.  It  thus  created  a  central  authority  command- 
ing the  common  obedience  of  its  individual  members,  and,  for 
the  first  time,  made  us  a  nation  in  fact  as  well  as  in  name. 
A  person  may  now  be  a  citizen  of  the  United  States  without 
being  a  citizen  of  any  one  particular  State;  but  by  no  con- 
ceivable combination  of  circumstances,  can  he  be  a  citizen 


BIGHTS  OF  CITIZENSHIP  97 

of  one  of  the  particular  States  till  he  is  first  a  citizen  of  the 
United  States. 

21.   RIGHTS  AND  IMMUNITIES  OP  CITIZENSHIP. 

The  subject  of  rights  of  citizenship  in  the  United  States  is  com- 
plicated by  the  fact  that  these  rights  have  their  source  in  and  depend 
for  their  guarantee  upon  two  governments,  the  State  and  the  Fed- 
eral. The  following  selection  from  Mr.  J.  S.  Wise  will  help  to  make 
clear  the  development  of  these  rights  and  the  relation  of  the  two 
sources  from  which  they  are  drawn: 

When  we  come  to  a  study  of  the  Declaration  of  Inde- 
pendence itself  we  find  a  reassertion  of  principles  concerning 
the  equality  of  men,  their  unalienable  rights,  that  government 
is  instituted  to  secure  those  rights,  that  it  derives  its  just 
powers  from  the  consent  of  the  governed,  and  the  right  of 
the  people,  when  it  becomes  destructive  of  those  ends,  to  alter 
or  abolish  it  and  institute  a  new  government. 

After  declaring  that  long  established  governments  should 
not  be  changed  for  light  and  transient  causes,  it  proceeds  to 
arraign  the  British  government  for  a  long  train  of  abuses  and 
usurpations.  We  may  gather,  from  the  enumeration  of  those 
abuses,  the  following  claims  made  by  the  revolutionists  con- 
cerning the  rights,  privileges,  and  immunities  of  citizens. 

1.  The  right  of  representation  in  the  legislature,  a  right  inesti- 
mable to  them. 

2.  The  right  to  have  representative  bodies  assembled  at  usual  and 
comfortable   places   convenient   to   the   depository    of   their   public 
records. 

3.  The  right  to  have  frequent  sessions  of  the  legislature. 

4.  The  right  to  have  a  system  of  naturalization  laws. 

5.  The  right  to  have  an  independent  judiciary. 

6.  The  right  to  oppose  a  multitude  of  offices. 

7.  The  right  to  oppose  standing  armies  in  time  of  peace. 

8.  The  right  to  have  the  civil  power  superior  to  the  military 
power. 

9.  The  right  to  resist  quartering  of  armed  troops  among  them, 

10.  The  right  to  trade  with  the  outside  world. 

11.  The  right  to  a  voice  in  taxation. 
7 


98  READINGS  IN  CIVIL  GOVERNMENT 

12.  The  right  to  trial  by  a  jury  of  the  vicinage. 

13.  The  right  of  local  self-government.     .     .     . 

Let  us  first  examine  the  rights  of  citizens  as  citizens  of  the 
States;  for  these  clearly  antedate  whatever  rights  they  pos- 
sess as  citizens  of  the  United  States,  by  a  period  equal  to  that 
which  elapsed  between  the  acknowledgment  of  the  inde- 
pendence of  the  thirteen  independent  colonies  by  Great  Brit- 
ain, and  the  formation  of  the  Union  by  the  States  themselves. 

No  State  in  the  Union  has  ever  sought  to  embody  in  one 
written  chart  a  full  expression  of  all  the  rights,  privileges, 
and  immunities  of  its  citizens.  Nor  will  the  attempt  now  be 
made.  On  this  subject  we  shall  content  ourselves  with  the 
language  of  Mr.  Justice  Washington,  construing  Section  2 
of  Article  IV,  of  the  Constitution  of  the  United  States,  which 
provides:  "Citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several  States." 
He  said: 

"The  inquiry  is,  What  are  the  privileges  and  immunities  of  citi- 
zens in  the  several  States?  We  feel  no  hesitation  in  confining  these 
expressions  to  those  privileges  and  immunities  which  are  in  their 
nature  fundamental,  which  belong  of  right  to  the  citizens  of  all  free 
governments,  and  which  have  at  all  times  been  enjoyed  by  the  citizens' 
of  the  several  States  which  compose  this  Union,  from  the  time  of 
their  becoming  free,  independent,  and  sovereign.  What  these  fun- 
damental principles  are,  it  would  perhaps  be  more  tedious  than 
difficult  to  enumerate.  They  may,  however,  be  all  comprehended 
under  the  following  general  heads:  protection  by  the  government; 
the  enjoyment  of  life  and  liberty,  with  the  right  to  acquire  and 
possess  property  of  every  kind,  and  to  pursue  and  obtain  happiness 
and  safety;  subject,  nevertheless,  to  such  restraints  as  the  govern- 
ment may  justly  prescribe  for  the  general  good  of  the  whole." 

Mr.  Justice  Miller,  in  the  Slaughter-House  Cases,  said,  with 
reference  to  this  observation  of  Mr.  Justice  Washington: 

"The  description,  when  taken  to  include  others  not  named,  but 
which  are  of  the  same  general  character,  embraces  nearly  every 
civil  right  for  the  establishment  and  protection  of  which  organized 
government  is  instituted." 

We  have  already  seen  that  during  the  period  in  which  the 


RIGHTS  OF  CITIZENSHIP  99 

States  co-operated  under  articles  of  confederation,  the  rights, 
privileges,  and  immunities  of  their  citizens  were  derived  ex- 
clusively from  their  respective  States,  and  that  the  power  of 
the  United  States  did  not  extend  to  the  control  of  the  indi- 
vidual, save  in  a  few  limited  and  specified  cases;  and  that  as 
then  constituted  the  United  States  did  not  attempt  to  grant 
or  guarantee  to  the  individual  citizen  any  rights,  privileges, 
or  immunities,  save  to  citizens  of  one  State  in  another  State. 

"When,  upon  the  adoption  of  the  Federal  Constitution,  Fed- 
eral power  operated  directly  upon  individual  citizens  of  the 
United  States,  the  number  of  Federal  guarantees  of  their 
rights  was  extended  also.  These  guarantees  were  the  neces- 
sary correlatives  of  the  specific  powers  granted  to  the  Federal 
government,  and  are  the  supreme  law  of  the  land  on  the  sub- 
jects to  which  they  refer. 

But  it  by  no  means  follows  from  this  that  the  Federal  gov- 
ernment is  supreme  concerning  all  the  rights,  privileges,  and 
immunities  of  the  citizen.  On  the  contrary,  while  it  is  su- 
preme in  its  sphere  and  possesses  ample  authority  to  enforce 
the  powers  expressly  delegated  to  it  by  the  Constitution,  it  is 
only  a  government  of  delegated  and  limited  powers,  and  the 
States,  in  forming  it,  expressly  retained  and  reserved  in 
themselves  the  absolute  control,  direction,  and  sovereignty 
over  their  citizens  concerning  a  vast  residuum  of  rights,  priv- 
ileges, and  immunities  which,  prior  to  the  adoption  of  the 
Constitution,  they  had  regulated  exclusively.  For  instance, 
it  has  never  been  contended  that  the  Constitution,  as  orig- 
inally framed,  created  in  the  Federal  government  any  power 
to  establish  any  code  of  municipal  law  applicable  to  the 
States  composing  it,  regulative  of  all  private  rights  between 
man  and  man  in  society,  or  that  Congress  may  usurp  the 
powers  of  State  legislatures  concerning  such  legislation.  The 
Supreme  Court  of  the  United  States  has  repeatedly  taken 
occasion  to  point  out  that  no  such  power  exists,  either  under 
the  original  Constitution  or  by  virtue  of  any  of  the  amend- 
ments. As  we  shall  see  later,  a  vast  amount  of  litigation 
which  has  arisen  under  the  constitutional  amendments  has 


100  READINGS  IN  CIVIL  GOVERNMENT 

been  based  upon  a  confused  notion  that  the  XIII,  XIV,  and 
XV  Amendments  in  some  way  altered  and  extended  the  gen- 
eral scope  of  Federal  powers,  even  to  the  point  of  effecting 
this  fundamental  change.  But  an  unbroken  line  of  Federal 
decisions  has  denied  that  such  a  change  in  the  organic  struc- 
ture of  the  Federal  government  was  either  contemplated  or 
effected  by  the  amendments,  and  points  out  that  the  legisla- 
tion which  Congress  is  authorized  to  enact  under  the  amend- 
ments is  not  general  legislation  upon  the  rights  of  citizens, 
but  only  certain  corrective  legislation,  if  such  be  necessary,  to 
counteract  State  legislation  prohibited  by  the  amendments 
upon  special  subjects  named  in  the  amendments. 

When  we  come  to  examine  the  multitudinous  decisions  of 
the  Supreme  Court  on  questions  which  have  arisen  under  the 
amendments  it  will  be  seen  that  the  cases  have  for  the  most 
part  not  originated  in  any  alleged  act  of  the  Federal  govern- 
ment invading  the  sphere  of  State  action,  but  upon  the  con- 
tention made  by  citizens  of  the  States  that  Federal  powers, 
as  enlarged  by  the  amendments,  are  much  more  far-reaching 
and  restrictive  upon  State  powers  than  the  Federal  courts 
themselves  have  been  willing  to  admit.  The  decisions  ren- 
dered by  the  Supreme  Court  have  in  an  overwhelming  ma- 
jority of  cases  been  against  the  broad  effect  of  the  constitu- 
tional amendments  as  authorizing  extended  Federal  powers, 
or  as  restricting  State  powers,  contended  for  by  the  citizens; 
and  they  declare  unanimously  the  continuing  power  of  the 
States,  notwithstanding  the  amendments,  to  regulate  exclu- 
sively the  rights,  privileges  and  immunities  of  citizens  upon 
the  matters  in  issue,  subject  only  to  the  particular  limitations 
named  in  the  amendments. 

22.   RIGHTS   OF    CITIZENSHIP    UNDER   THE   FOURTEENTH 
AMENDMENT. 

The  following  extracts  from  recent  decisions  by  the  Supreme 
Court  of  the  United  States  will  serve  to  amplify  the  statement  made 
in  the  preceding  selection  that  the  effect  of  the  War  Amendments 
was  not  to  destroy  the  control  exercised  by  the  States  over  the  great 


RIGHTS  OF  CITIZENSHIP  101 

body  of  civil  rights.  In  the  famous  Civil  Rights  cases  decided  in 
1883,  in  which  the  Civil  Rights  Act  of  1875  was  held  unconstitutional, 
the  court  said: 

Until  some  State  law  has  been  passed,  or  some  State  action 
through  its  officers  or  agents  has  been  taken,  adverse  to  the 
rights  of  citizens  sought  to  be  protected  by  the  Fourteenth 
Amendment,  no  legislation  of  the  United  States  under  said 
amendment  nor  any  proceeding  under  such  legislation,  can 
be  called  into  activity ;  for  the  prohibitions  of  the  amendment 
are  against  States  laws  and  acts  done  under  State  authority. 
Of  course,  legislation  may,  and  should  be,  provided  in  ad- 
vance to  meet  the  exigency  when  it  arises;  but  it  should  be 
adapted  to  the  mischief  and  wrong  which  the  amendment 
was  intended  to  provide  against;  and  that  is,  State  laws,  or 
State  action  of  some  kind,  adverse  to  the  rights  of  the  citizen 
secured  by  the  amendment.  Such  legislation  cannot  properly 
cover  the  whole  domain  of  rights  appertaining  to  life,  liberty 
and  property,  denning  them  and  providing  for  their  vindica- 
tion. That  would  be  to  establish  a  code  of  municipal  law 
regulative  of  all  private  rights  between  man  and  man  in 
society.  It  would  be  to  make  Congress  take  the  place  of  the 
State  legislatures  and  to  supersede  them.  It  is  absurd  to 
affirm  that,  because  the  rights  of  life,  liberty  and  property 
(which  include  all  civil  rights  that  men  have),  are  by  the 
amendment  sought  to  be  protected  against  invasion  on  the 
part  of  the  State  without  due  process  of  law,  Congress  may 
therefore  provide  due  process  of  law  for  their  vindication 
in  every  case;  and  that,  because  the  denial  by  a  State  to  any 
persons,  of  the  equal  protection  of  the  laws,  is  prohibited  by 
the  amendment,  therefore  Congress  may  establish  laws  for 
their  equal  protection.  In  fine,  the  legislation  which  Congress 
is  authorized  to  adopt  in  this  behalf  is  not  general  legislation 
upon  the  rights  of  the  citizens,  but  corrective  legislation, 
that  is,  such  as  may  be  necessary  and  proper  for  counter- 
acting such  laws  as  the  States  may  adopt  or  enforce,  and 
which,  by  the  amendment,  they  are  prohibited  from  making 
or  enforcing,  or  such  acts  and  proceedings  as  the  States  may 


102  .LADINGS  INF  CIVIL  GOVERNMENT 

commit  or  take,  and  which,  by  the  amendment,  they  are  pro- 
hibited from  committing  or  taking.  It  is  not  necessary  for  us 
to  state,  if  we  could,  what  legislation  would  be  proper  for 
Congress  to  adopt.  It  is  sufficient  for  us  to  examine  whether 
the  law  in  question  is  of  that  character. 

And  again,  in  the  Slaughter  House  cases  in  which  the  authority 
of  the  United  States  was  invoked  to  prevent  the  Legislature  of 
Louisiana  from  making  certain  regulations  to  govern  the  slaughter- 
ing business  in  New  Orleans,  the  Court  held  that  no  such  authority 
had  been  conferred  upon  the  United  States  by  the  amendments  in 
question:  [1873]. 

It  would  be  the  vainest  show  of  learning  to  attempt  to 
prove  by  citation  of  authority,  that  up  to  the  adoption  of  the 
recent  amendments,  no  claim  or  pretense  was  set  up  that  those 
rights  depended  on  the  Federal  government  for  their  ex- 
istence or  protection,  beyond  the  very  few  express  limitations 
which  the  Federal  Constitution  imposed  upon  the  State — 
such,  for  instance,  as  the  prohibition  against  ex  post  facto 
laws,  bills  of  attainder,  and  laws  impairing  the  obligation 
of  contracts.  But  with  the  exception  of  these  and  a  few 
other  restrictions,  the  entire  domain  of  the  privileges  and 
immunities  of  citizens  of  the  States,  as  above  defined,  lay 
within  the  constitutional  and  legislative  power  of  the  States, 
and  without  that  of  the  Federal  government.  Was  it  the 
purpose  of  the  fourteenth  amendment,  by  the  simple  declara- 
tion that  no  State  should  make  or  enforce  any  law  which  shall 
abridge  the  privileges  and  immunities  of  citizens  of  the  United 
States,  to  transfer  the  security  and  protection  of  all  the  civil 
rights  which  we  have  mentioned,  from  the  States  to  the  Fed- 
eral government?  And  where  it  is  declared  that  Congress 
shall  have  the  power  to  enforce  that  article,  was  it  intended 
to  bring  within  the  power  of  Congress  the  entire  domain  of 
civil  rights  heretofore  belonging  exclusively  to  the  States? 

All  this  and  more  must  follow,  if  the  proposition  of  the 
plaintiffs  in  error  be  sound.  For  not  only  are  these  rights 
subject  to  the  control  of  Congress  whenever  in  its  discretion 


BIGHTS  OF  CITIZENSHIP  103 

any  of  them  are  supposed  to  be  abridged  by  State  legislation, 
but  that  body  may  also  pass  laws  in  advance,  limiting  and 
restricting  the  exercise  of  legislative  power  by  the  States,  in 
their  most  ordinary  and  usual  functions,  as  in  its  judgment 
it  may  think  proper  on  all  such  subjects.  And  still  further, 
such  a  construction  followed  by  the  reversal  of  the  judg- 
ments of  the  Supreme  Court  of  Louisiana  in  these  cases,  would 
constitute  this  court  a  perpetual  censor  upon  all  legislation 
of  the  States,  on  the  civil  rights  of  their  own  citizens,  with 
authority  to  nullify  such  as  it  did  not  approve  as  consistent 
with  those  rights,  as  they  existed  at  the  time  of  the  adoption 
of  this  amendment.  The  argument,  we  admit,  is  not  always 
the  most  conclusive  which  is  drawn  from  the  consequences 
urged  against  the  adoption  of  a  particular  construction  of  an 
instrument.  But,  when,  as  in  the  case  before  us,  these  con- 
sequences are  so  serious,  so  far-reaching  and  pervading,  so 
great  a  departure  from  the  structure  and  spirit  of  our  insti- 
tutions; when  the  effect  is  to  fetter  and  degrade  the  State 
governments  by  subjecting  them  to  the  control  of  Congress, 
in  the  exercise  of  powers,  heretofore  universally  conceded  to 
them  of  the  most  ordinary  and  fundamental  character;  when 
in  fact  it  radically  changes  the  whole  theory  of  the  relations 
of  the  State  and  Federal  government  to  each  other  and  of 
both  these  governments  to  the  people;  the  argument  has  a 
force  that  is  irresistible,  in  the  absence  of  language  which 
expresses  such  a  purpose  too  clearly  to  admit  of  doubt. 

We  are  convinced  that  no  such  results  were  intended  by  the 
Congress  which  proposed  these  amendments,  nor  by  the  legis- 
latures of  the  States  which  ratified  them. 

Having  shown  that  the  privileges  and  immunities  relied  on 
in  the  argument  are  those  which  belong  to  citizens  of  the 
States  as  such,  and  that  they  are  left  to  the  State  govern- 
ments for  security  and  protection,  and  not  by  this  article 
placed  under  the  special  care  of  the  Federal  government,  we 
may  hold  ourselves  excused  from  defining  the  privileges  and 
immunities  of  citizens  of  the  United  States  which  no  State 


104  READINGS  IN  CIVIL  GOVERNMENT 

can  abridge,  until  some  case  involving  those  privileges  may 
make  it  necessary  to  do  so. 

But  lest  it  should  be  said  that  no  such  privileges  and  im- 
munities are  to  be  found  if  those  we  have  been  considering  are 
excluded,  we  venture  to  suggest  some  which  owe  their  ex- 
istence to  the  Federal  government,  its  National  character,  its 
Constitution,  or  its  laws. 

One  of  these  is  well  described  in  the  case  of  Crandall  v. 
Nevada.  It  is  said  to  be  the  right  of  the  citizen  of  this  great 
country,  protected  by  implied  guarantees  of  its  Constitution, 
"to  come  to  the  seat  of  government  to  assert  any  claim  he 
may  have  upon  that  government,  to  transact  any  business  he 
may  have  with  it,  to  seek  its  protection,  to  share  its  offices,  to 
engage  in  administering  its  functions.  He  has  the  right  of 
free  access  to  its  seaports,  through  which  all  operations  of 
foreign  commerce  are  conducted,  to  the  sub-treasuries,  land 
offices,  and  courts  of  justices  in  the  several  States."  And 
quoting  from  the  language  of  Chief  Justice  Taney  in  another 
case,  it  is  said  "that  for  all  the  great  purposes  for  which  the 
Federal  government  was  established,  we  are  one  people,  with 
one  common  country;  we  are  all  citizens  of  the  United  States/' 
and  it  is  as  such  citizens  that  their  rights  are  supported  in 
this  court  in  Crandall  v.  Nevada. 

Another  privilege  of  a  citizen  of  the  United  States  is  to 
demand  the  care  and  protection  of  the  Federal  government 
over  his  life,  liberty,  and  property  when  on  the  high  seas  or 
within  the  jurisdiction  of  a  foreign  government.  Of  this 
there  can  be  no  doubt,  nor  that  the  right  depends  upon  his 
character  as  a  citizen  of  the  United  States.  The  right  to 
peaceably  assemble  and  petition  for  redress  of  grievances, 
the  privileges  of  the  writ  of  habeas  corpus,  are  rights  of  the 
citizen  guaranteed  by  the  Federal  Constitution.  The  right  to 
use  the  navigable  waters  of  the  United  States,  however  they 
may  penetrate  the  territory  of  the  several  States,  all  rights 
secured  to  our  citizens  by  treaties  with  foreign  nations,  are 
dependent  upon  citizenship  of  the  United  States,  and  not 


EIGHTS  OF  CITIZENSHIP  105 

citizenship  of  a  State.  One  of  these  privileges  is  conferred  by 
the  very  article  under  consideration.  It  is  that  a  citizen  of 
the  United  States  can,  of  his  own  volition,  become  a  citizen 
of  any  State  of  the  Union  by  a  bona  fide  residence  therein, 
with  the  same  rights  as  other  citizens  of  that  State.  .  .  . 

23.    THE  WRIT  OP   HABEAS   CORPUS. 

One  of  the  most  cherished  rights  of  English  and  American  citizens 
and  one  of  the  greatest  bulwarks  against  an  oppressive  government 
is  the  right  of  Habeas  Corpus.  A  good  idea  of  the  importance  of 
this  right  and  of  the  circumstances  leading  to  its  recognition  in  Eng- 
land whence  it  was  brought  to  America  may  be  gained  from  the  fol- 
lowing description  by  Professor  C.  C.  Crawford: 

"The  right  to  personal  liberty  as  understood  in  England," 
says  Dicey,  " means  in  substance  a  person's  right  not  to  be 
subjected  to  imprisonment,  arrest,  or  other  physical  coercion 
in  any  manner  that  does  not  admit  of  legal  justification." 
Since  the  seventeenth  century,  the  right  to  the  writ  of  Habeas 
Corpus  has  been  justly  regarded  as  the  most  effective  among 
the  guarantees  of  personal  liberty.  In  brief  the  legal  process 
is  this:  a  court  of  competent  jurisdiction,  upon  application, 
issues  a  writ  to  an  officer  or  to  any  person  holding  another  in 
custody,  commanding  him  to  bring  the  prisoner  before  the 
court  at  once  and  show  the  reasons  for  his  detention.  If  in 
the  judgment  of  the  court  the  charges  do  not  justify  such 
detention,  the  prisoner  is  discharged.  But  if  they  are  con- 
sidered adequate,  and  the  offense  is  bailable,  he  is  released 
upon  furnishing  suitable  bail;  otherwise  he  is  remanded  to 
prison.  To  the  English  people  is  due  the  credit  for  having 
created  this  most  effective  remedy  for  infringement  upon  per- 
sonal liberty,  although  it  has  now  been  adopted  with  various 
modifications  in  nearly  all  civilized  countries.  The  tendency 
of  legal  writers  has  been  to  obscure  the  origin  and  develop- 
ment of  the  writ  of  Habeas  Corpus  behind  a  mass  of  vague 
generalities,  extolling  the  liberty  of  the  English  subject.  In 
the  absence  of  a  careful  and  detailed  history  of  the  writ,  it  is 


106  READINGS  IN  CIVIL  GOVERNMENT 

the  purpose  of  this  article  to  outline  the  principal  changes 
through  which  it  has  passed  to  become  the  chief  safeguard  of 
personal  liberty. 

The  right  to  the  writ  of  Habeas  Corpus  is  ascribed  by  many 
to  the  famous  statute  bearing  that  name  passed  by  Parliament 
in  1679.  But  this  act  merely  corrected  certain  important 
defects  and  abolished  many  abuses  of  a  practice  long  known 
at  Common  Law.  On  the  other  hand,  many  legal  writers 
have  endeavored  to  find  in  articles  36,  39  and  40  of  Magna 
Charta,  a  recognition  of  the  principles  involved  in  the  writ 
of  Habeas  Corpus.  Although  the  last  two  clauses  declare 
that  rights  of  justice  and  personal  liberty  will  not  be  vio- 
lated, they  cannot  as  they  stand  be  made  to  imply  the  writ  of 
Habeas  Corpus.  .  .  . 

It  was  not  until  near  the  close  of  the  Tudor  period  that 
the  people  began  to  demand  more  effective  guarantees  against 
the  exercise  of  the  arbitrary  powers  of  the  crown  over  per- 
sonal liberty.  .  .  .  Thus  as  early  as  1592,  at  least,  Habeas 
Corpus  was  established  as  an  independent  writ  to  test  the 
validity  of  imprisonment.  But  as  yet  it  afforded  no  relief 
when  the  commitment  was  made  in  consequence  of  a  warrant 
from  the  crown  or  the  Privy  Council.  .  .  . 

The  Commons  were  not  content  to  leave  the  matter  in  this 
state.  In  the  course  of  a  long  and  heated  discussion,  they 
passed  a  unanimous  resolution  on  April  3,  16'28,  denying  the 
right  of  the  king,  the  privy  council,  or  anyone,  to  imprison 
or  detain  a  freeman  without  a  legal  warrant  setting  forth 
the  reasons  for  detention  and  affirming  the  right  of  every 
man  confined  to  prison,  even  under  the  express  command  of 
the  king  or  the  council  to  demand  and  obtain  a  writ  of 
Habeas  Corpus.  This  resolution  was  made  the  basis  of  an 
important  part  of  the  Petition  of  Right,  passed  by  Parlia- 
ment of  May  27th.  After  quoting  39  Magna  Charta  and  a 
portion  of  25  Edw.  II,  C.  3,  the  Petition  continues:  "Divers 
of  your  subjects  have  of  late  been  imprisoned  without  any 
cause  shown,  and  when  for  their  deliverance  they  were  brought 
before  your  justices  by  your  majesty's  writs  of  Habeas  Corpus 


BIGHTS  OF  CITIZENSHIP  107 

and  there  to  undergo  and  receive  as  the  court  should  order, 
and  their  keepers  commanded  to  certify  the  causes  of  their 
detainer,  no  cause  was  certified,  but  they  were  detained  by 
your  majesty's  special  command,  signed  by  the  lords  of  your 
privy  council,  and  yet  were  returned  back  to  their  several 
prisons  without  being  charged  with  anything  to  which  they 
might  answer  according  to  the  law.  They,  therefore,  hum- 
bly pray  your  Most  Excellent  Majesty  .  .  .  that  no  free- 
man in  any  such  manner  as  is  before  mentioned,  be  impris- 
oned or  detained. ' '  After  a  vigorous  protest,  the  king  signed 
the  petition  on  June  7,  1628,  thereby  giving  it  the  force  of 
law.  .  .  . 

One  of  the  charges  preferred  against  Clarendon  in  the 
articles  of  impeachment  of  1667  was,  "That  he  hath  advised 
and  procured  divers  of  his  majesty's  subjects  to  be  impris- 
oned against  the  law  .  .  .  thereby  to  prevent  them  from 
the  benefit  of  the  law."  Whether  this  charge  were  true  or 
false,  it  is  certain  that  cases  arose  between  1660-79  in  which 
the  prisoner  suffered  great  hardship  because  of  unsettled 
points  in  the  practice  of  Habeas  Corpus,  and  it  appears  that 
the  administration  took  advantage  of  these  defects  for  po- 
litical purposes.  The  Shaftesbury  and  the  Jenks  cases  were 
certainly  of  this  character. 

The  reasons  for  Shaftesbury 's  commitment  to  the  Tower 
by  the  Lords  on  February  16,  1677,  have  been  mentioned. 
On  June  27,  1677,  Shaftesbury  was  brought  before  the  court 
of  King's  Bench  by  an  Alias  Writ  of  Habeas  Corpus.  The 
return  stated  merely  that  the  prisoner  was  held  in  custody 
by  order  of  the  Lords  for  "high  contempt  committed  against 
the  House."  In  spite  of  a  vigorous  protest  by  Shaftesbury 's 
counsel,  the  court  held  that  since  the  commitment  had  been 
ordered  by  the  king's  highest  court,  the  court  of  King's 
Bench  had  no  jurisdiction  in  the  matter.  He  was  remanded 
and  not  released  until  late  in  the  following  February  upon 
order  of  the  Lords  themselves.  The  case  was  clearly  one  of 
political  oppression.  It  is  significant  that  Shaftesbury  was 
later  the  author  of  the  Habeas  Corpus  Act  as  passed  in  1679, 


108  READINGS  IN  CIVIL  GOVERNMENT 

and  it  has  been  said,  without  definite  proof,  that  he  drafted 
the  Act  while  in  prison  at  this  time. 

A  more  direct  influence  upon  the  passage  of  the  Habeas 
Corpus  Act  was  brought  to  bear  by  the  Jenks  Case  in  1676. 
Francis  Jenks,  a  linen  draper,  and  a  member  of  the  Com- 
mon Council  of  London,  in  a  speech  at  Guildhall  on  June  24, 
1676,  charging  the  French  with  the  destruction  of  England's 
foreign  shipping,  and  calling  attention  to  the  danger  to  the 
Protestant  religion,  moved  for  a  petition  to  the  king  to  sum- 
mon a  new  Parliament.  It  will  be  remembered  that  Parlia- 
ment had  not  convened  for  fifteen  months.  While  Jenks 
seemed  to  have  voiced  the  sentiment  of  the  majority  present, 
his  speech,  which  was  really  mild  in  tone,  was  reported  in  a 
greatly  magnified  form  to  the  Lord  Chief  Justice.  Upon 
June  28th,  Jenks  upon  summons  appeared  before  the  king  in 
council  and  was  committed  by  that  body  to  Gatehouse.  For 
some  time  the  keeper  denied  Jenks  a  copy  of  the  warrant  of 
commitment,  as  he  said  he  had  been  forbidden  to  give  him 
one.  On  the  day  following  the  arrest,  Jenks'  friends  offered 
bail.  The  Secretary,  however,  refused  to  accept  it  until  he 
had  first  laid  the  matter  before  the  Council.  The  Lord  Chief 
Justice  was  then  petitioned  for  a  writ  of  Habeas  Corpus. 
That  dignitary  declining  to  hear  precedents,  refused  to  act 
during  vacation  of  court.  On  June  30th  the  Chancellor  de- 
clared that  he  had  no  authority  to  grant  a  writ  of  Habeas 
Corpus  until  the  Chancery  met  on  July  6th.  No  action  was 
taken  at  that  or  any  subsequent  meeting.  Later  the  Chan- 
cellor refused  to  grant  a  writ  of  Main-prise,  on  the  grounds 
that  it  was  an  obsolete  form.  In  the  meantime  the  Coun- 
cil had  met,  but  the  Secretary  informed  Jenks  that  the  king 
had  said  that  the  question  of  bail  must  come  before  the  Coun- 
cil in  the  form  of  a  petition.  On  July  llth,  Quarter  Ses- 
sion refused  to  take  action  as  the  case  did  not  appear  on  the 
calendar.  Finally,  late  in  August,  after  the  Secretary,  Chan- 
cellor and  Chief  Justice  had  denied  several  other  petitions  on 
one  excuse  or  another,  the  king  ordered  that  bail  be  ac- 
cepted. 


RIGHTS  OF  CITIZENSHIP  109 

The  case  caused  much  excitement  in  and  out  of  Parlia- 
ment. As  early  as  April,  1668,  a  bill  "to  prevent  refusal 
of  Habeas  Corpus"  had  been  reported  in  the  lower  house  and 
read  the  first  and  second  time.  In  February,  1674,  "An  act 
for  the  speedy  relief  of  persons  detained  for  criminal  mat- 
ters," was  passed  by  the  Commons,  but  apparently  no  action 
was  taken  by  the  Lords.  A  similar  fate  awaited  another 
bill  in  June,  1675.  In  March  and  April,  1677,  the  Lords 
themselves  had  originated  and  passed  through  the  second 
reading,  ' '  An  act  for  the  better  security  of  liberty  of  the  sub- 
ject," but  it  was  dropped.  Finally,  in  the  spring  of  1679, 
after  a  long  series  of  compromises  and  joint  conferences,  the 
Habeas  Corpus  Act  was  passed  by  both  houses  and  signed  by 
the  king  on  May  27th.  On  the  day  that  the  king  signed  the 
bill  he  dissolved  Parliament.  It  has  been  suggested  that 
pending  the  new  election,  Charles  II  had  approved  the  meas- 
ure to  gain  popular  support. 

According  to  the  provisions  of  31  Charles  II,  C.  2,  any 
person  detained  for  crime,  "unless  for  treason  and  felony 
plainly  expressed  in  the  warrant  of  commitment,"  or  anyone 
in  his  behalf,  has  the  right  to  demand  a  writ  of  Habeas  Cor- 
pus of  the  courts  of  King's  Bench,  Common  Pleas,  Chancery 
or  Exchequer,  or  of  any  of  the  judges  of  the  same,  if  the 
above  courts  are  not  in  session.  The  existing  law  provided 
the  remedy  when  the  appeal  was  made  to  the  court.  But  in 
case  the  appeal  was  made  to  the  judges  personally,  the  Habeas 
Corpus  Act  required  that  on  view  of  a  copy  of  the  warrant  of 
commitment,  or  the  oath  of  two  witnesses  that  such  a  copy 
had  been  denied,  he  issued  at  once  a  writ  of  Habeas  Corpus 
to  the  one  holding  the  prisoner  in  charge,  commanding  him 
within  a  period  not  less  than  three  nor  more  than  twenty 
days,  depending  upon  the  distance,  to  bring  before  the  judge 
the  body  of  the  prisoner  and  show  reasons  for  his  detention. 
Within  two  days  after  the  prisoner  was  presented,  the  judge 
was  obliged  to  bail  or  remand  him  in  accordance  with  the 
provisions  of  the  law  for  the  particular  offense.  If  the  judge 
to  whom  the  proper  demand  was  made  refused  to  act  in  accord 


110  READINGS  IN  CIVIL  GOVERNMENT 

with  the  intent  of  the  statute,  he  was  made  liable  to  a  forfeit 
of  500  pounds  to  the  aggrieved  person.  If  the  gaoler  refused 
a  copy  of  the  warrant  of  commitment  within  six  hours  after 
the  demand  had  been  made,  or  transferred  the  prisoner  into 
the  custody  of  another  except  in  obedience  to  a  legal  process, 
or  failed  to  make  a  proper  return  to  the  writ  of  Habeas  Cor- 
pus within  the  time  specified,  he  was  liable  to  a  forfeiture  of 
100  pounds  to  the  aggrieved  person.  Once  released  on  a  writ 
of  Habeas  Corpus,  the  defendant  was  privileged  against  fur- 
ther arrest  for  the  same  offense.  Although  those  "  commit- 
ted for  high  treason,  plainly  and  specially  expressed  in  the 
warrant  of  commitment, "  were  denied  the  writ  of  Habeas 
Corpus,  conviction  must  be  had  no  later  than  the  end  of  the 
second  session  of  the  court  after  arrest ;  but  in  the  failure  of 
such  conviction  the  prisoner  must  be  discharged. 

ADDITIONAL  READINGS 

1 — Citizenship,   Willoughby,  W.  W.,  The  American  Consti- 
tutional System,  241-9. 
2— Citizenship  in  the  United  States,  Tiedeman,  C.  S.,  The 

Unwritten  Constitution,  91-109. 
3 — Citizenship  of  the  United  States,  Richman,  I.  B.,  Political 

Science  Quarterly,  V,  104r-23. 
4 — Rights  of  Citizenship  under  the  Fourteenth  Amendment, 

Willoughby,  The  American  Constitutional  System,  180- 

89. 
5 — Suspension  of  the  Habeas  Corpus  During  the  War  of  the 

Rebellion,  Fisher,  S.  G.,  Political  Science  Quarterly,  III, 

454-85. 


CHAPTER  VI 
POLITICAL  BIGHTS  AND  DUTIES 

24.   THE   NATURE   AND    EXTENSION    OF    THE   SUFFRAGE. 

Is  the  suffrage  a  natural  right?  Should  it  be  extended  to  all  citi- 
zens? What  is  the  tendency  of  modern  political  history  on  these 
points?  These  questions  which  constantly  present  themselves  to 
students  of  civil  government  are  answered  by  Professor  W.  W.  Wil- 
loughby  in  the  following  paragraphs : 1 

The  most  striking  feature  of  the  present  day  is  ... 
the  development  of  popular  control  of  government.  By  its 
own  inherent  nature  one  step  in  democratic  progress  leads  to 
a  further  one.  There  is  always  present  to  the, party  in  power 
the  temptation  to  broaden  the  franchise  for  the  sake  of  the 
popular  support  that  it  will  thus  obtain.  The  time  will  al- 
ways come,  when,  wisely  or  unwisely,  this  temptation  will  be 
yielded  to.  "When  a  nation  modifies  the  elective  qualifica- 
tion," says  De  Tocqueville,  "it  may  easily  be  foreseen  that 
sooner  or  later  that  qualification  will  be  entirely  abolished. 
There  is  no  more  invariable  rule  in  the  history  of  society ;  the 
farther  electoral  rights  are  extended,  the  more  is  felt  the  need 
of  extending  them;  for  after  each  concession  the  strength  of 
the  democracy  increases,  and  its  demand  increases  with  its 
strength.  The  ambition  of  those  who  are  below  the  appointed 
rate  is  irritated  in  exact  proportion  to  the  great  number  of 
those  who  are  above  it.  The  exception  at  last  becomes  the 
rule,  concession  follows  concession,  and  no  stop  can  be  had 
short  of  universal  suffrage." 

A  striking  demonstration  of  the  above  rule  is  seen  in  the 

i  Selections  24  and  76  are  reprinted  from  Willoughby,  W.  W.,  The 
Nature  of  the  State,  by  special  permission  of  MacMillan  and  Company. 

Ill 


112  READINGS  IN  CIVIL  GOVERNMENT 

steady  widening  of  the  suffrage  in  England  during  the  last 
fifteen  years.  The  same  tendency  is  at  work  in  the  mon- 
archies of  Europe,  though  not  yet  carried  to  the  same  extent, 
the  last  conspicuous  triumph  of  this  principle  being  the  modi- 
fication of  the  electoral  qualification  in  Belgium  in  1894. 
The  history  is  the  same  in  our  own  country,  where  the  tend- 
ency has  been  so  strong  as  to  prevent  even  decent  restric- 
tions upon  the  voting  power  of  the  newly  landed  and  igno- 
rant aliens  who  yearly  crowd  in  thousands  to  our  shores. 

A  step  once  taken  in  this  direction  is  seldom  if  ever  re- 
traced. The  suffrage  once  broadened,  its  subsequent  restric- 
tion seems  almost  impossible.  Such  a  step  requires  a  forti- 
tude and  disinterestedness  on  the  part  of  the  parties  in  power 
such  as  history  has  shown  them  seldom  to  possess.  .  .  . 

It  is  a  fair  prediction,  then,  to  say  that  the  world  is  to  see 
in  the  future  a  continued  advance  in  democracy  and  popular 
government.  This  being  so,  we  are  led  to  consider  what  ef- 
fect this  development  will  have,  when  taken  in  conjunction 
with  other  changing  conditions,  upon  good  government  and 
general  prosperity. 

Side  by  side  with  this  movement  that  is  hurrying  the  civ- 
ilized world  towards  democracy  is  the  increasing  pressure 
that  is  brought  to  bear  by  the  augmenting  complexity  of  so- 
cial and  industrial  relations  for  the  State  constantly  to  widen 
the  scope  of  its  activities.  Will  the  union  of  these  two  tend- 
encies give  us  good  government f  A  unanimously  affirma- 
tive answer  is  by  no  means  given  to  this. 

4 'If  I  am  in  any  degree  right/'  says  Sir  Henry  Maine, 
"popular  government,  especially  as  it  approaches  the  demo- 
cratic form,  will  tax  to  the  utmost  all  the  political  sagacity 
and  statesmanship  of  the  world  to  keep  it  from  misfor- 
tune." .  .  .  "The  nations  of  our  time,"  says  De  Tocque- 
ville,  "cannot  prevent  the  conditions  of  men  from  becoming 
equal,  but  it  depends  upon  themselves  whether  the  principle 
of  equality  is  to  lead  them  to  servitude  or  freedom,  to  knowl- 
edge or  barbarism,  to  prosperity  or  to  wretchedness." 

It  must  be  ever  remembered  that  the  decisive  point  in  the 


POLITICAL  EIGHTS  AND  DUTIES  113 

success  of  a  popular  government  lies  in  the  quality  of  its 
voting  citizens.  Of  what  use  is  it  to  perfect  governmental 
forms  and  methods  if  the  constituency  be  incapable  of  their 
proper  management?  There  are  those  who  would  go  so  far 
as  to  have  us  believe  that  the  exercise  of  the  suffrage  is  an 
inherent  inalienable  right  of  the  free-born  citizen.  It  does 
not  need  to  be  said  that  it  is  not.  It  is  a  political  privilege, 
and  is  founded  only  on  law,  and  a  claim  to  its  extension  to 
all  individuals  has  not  even  that  moral  or  utilitarian  basis 
that  supports  the  demand  for  an  equality  in  those  so-called 
natural  rights  which  we  discussed  in  a  former  chapter.  The 
citizen  is  endowed  with  right  of  suffrage,  in  order  that  by  its 
exercise  the  good  of  society  may  be  maintained,  and  it  is  for 
society  to  determine  to  what  extent,  and  by  whom,  and  under 
what  conditions  this  power  is  to  be  used.  Amiel  strikes  the 
vital  point,  when  he  says  in  his  Journal  that  "the  pretension 
that  every  man  has  the  necessary  qualities  of  a  citizen  sim- 
ply because  he  was  born  twenty-one  years  ago,  is  as  much  as  to 
say  that  labour,  merit,  virtue,  character  and  experience  are 
to  count  for  nothing;  and  we  destroy  humility  when  we  pro- 
claim that  a  man  becomes  the  equal  of  all  other  men  by  the 
mere  mechanical  and  vegetative  process  of  natural  growth." 

25.    THE  EFFECT  OF   THE  FOURTEENTH  AND  FIFTEENTH  AMEND- 
MENTS  UPON  THE  SUFFRAGE. 

The  Constitution  of  the  United  States  left  the  determination  of 
the  right  to  the  elective  franchise,  even  in  Federal  elections,  to  the 
several  States.  But  the  fourteenth  and  fifteenth  amendments  placed 
certain  restrictions  upon  the  power  of  the  States  in  this  particular. 
Mr.  Wm.  L.  Scruggs  discusses  these  restrictions: 

How  did  the  Fourteenth  Amendment  affect  the  status  of 
the  suffrage  question  ?  It  did  not  materially  change  it.  It  did 
not  take  from  the  State  the  power  to  fix  the  qualifications  of 
electors,  nor  fasten  upon  us  the  pernicious  doctrine  of  uni- 
versal suffrage.  It  prohibits  the  State  from  making  or  en- 
forcing any  law  "abridging  the  privileges  and  immunities  of 
citizens  of  the  United  States. "  But  what  are  we  to  under- 

8 


114  READINGS  IN  CIVIL  GOVERNMENT 

stand  by  the  words  "privileges  and  immunities?"  They  did 
not  come  into  the  Constitution  with  the  Fourteenth  Amend- 
ment. They  had  been  there,  in  Article  IV.,  more  than  three- 
quarters  of  a  century  before  that  Amendment  was  ever 
dreamed  of.  And  our  judicial  tribunals  had  uniformly  held 
that  they  relate,  not  to  the  right  of  suffrage  at  all,  but  only 
to  the  natural  or  personal  rights  inherent  in  citizenship,  of 
which  the  right  to  vote  was  not  one. 

The  only  clause  in  the  Amendment  that  bears  upon  the 
suffrage  question  is  in  section  two,  which  relates  to  the  ap- 
portionment of  representatives  among  the  several  States.  The 
apportionment  is  based  on  population.  But  "when  the  right 
to  vote  is  denied  to  male  citizens  of  the  United  States  twenty- 
one  years  of  age,"  the  number  of  representatives  is  to  be  pro- 
portionately reduced.  It  is  to  be  reduced  "in  the  proportion 
which  the  number  of  such  citizens  bears  to  the  whole  number 
of  citizens"  of  that  age  residing  in  the  State.  But  the  ques- 
tion naturally  arises,  Whence  comes  the  right  of  citizens  of  the 
United  States  to  vote  ?  Not  being  a  natural  right  inherent  in 
citizenship,  it  can  come  only  by  a  State  law;  for  only  in  a 
Territory,  not  yet  admitted  to  Statehood,  can  it  come  by  act 
of  Congress.  And  in  neither  case  is  there  any  constitutional 
obligation  to  grant  the  right.  The  only  consequence  to  the 
State  in  not  granting  it  is,  fewer  representatives  in  the  lower 
House  of  Congress,  and  in  the  College  of  Electors  for  Presi- 
dent and  Vice-President — the  number  of  Senators  not  being 
affected  thereby.  And  this,  so  far  from  being  a  loss  to  the 
State,  might  be  a  positive  advantage.  For  experience  has 
abundantly  shown,  that  it  is  not  the  number,  but  the  ability 
and  character  of  its  representatives,  that  gives  the  State  con- 
sideration and  influence  in  the  councils  of  the  nation.  No 
political  contrivance  can  annul  the  divine  law  by  which  one 
wise  man  counts  for  more,  in  deliberative  assemblies,  and  in 
the  affairs  of  the  world  generally,  than  any  number  of  fools. 

But  it  is  said  that  the  Fifteenth  Amendment  practically 
nullifies  this  section  of  the  Fourteenth;  that  it  assumes  "the 
right  of  citizens  of  the  United  States  to  vote"  to  be  a  vested 


POLITICAL  RIGHTS  AND  DUTIES  115 

right;  that  it  gives  Congress  the  power  to  enforce  this  as- 
sumption ;  and,  consequently,  that  it  takes  from  the  State  its 
ancient  prerogative  of  fixing  the  qualifications  of  electors. 

It  really  does  nothing  of  the  kind.  It  declares,  simply,  that 
"the  right  of  citizens  of  the  United  States  to  vote  shall  not 
be  denied  or  abridged,"  by  either  State  or  nation,  "on  ac- 
count of  race,  color,  or  previous  condition  of  servitude ' ' ;  and 
it  gives  Congress  the  power  to  enforce  this  provision  for  im- 
partial suffrage  by  "appropriate  legislation."  There  is  an 
assumption  only  of  the  potential  right  to  vote.  There  is  no 
assumption  of  a  vested  right  to  vote.  The  potential  right  to 
vote  can  become  actual  only  by  a  law  of  the  State,  or  in  a 
Territory  by  a  law  of  Congress.  There  is  no  mandate  that 
the  actual  right  shall  be  conferred  in  either  case.  The  only 
mandate  is  that,  in  conferring  it,  the  grant  must  be  impartial 
as  between  black  and  white  citizens.  The  plain  import  of  the 
Amendment,  therefore,  is  that  when  the  right  to  vote  is 
granted,  it  must  be  impartially  granted ;  but  it  is  always  com- 
petent to  the  State  (or  to  Congress,  as  the  case  may  be)  to 
declare  that  "when." 

Six  of  the  Southern  States  have  recently,  by  changes  in 
their  fundamental  law,  restricted  the  suffrage  by  a  literary 
and  property  qualification.  Any  resident  citizen  of  the  United 
States,  black  or  white,  who  owns  a  certain  amount  of  prop- 
erty and  who  can  read  and  write  the  English  language,  may 
vote.  No  citizen,  black  or  white,  who  does  not  measure  up 
to  this  standard  of  qualification,  can  vote.  The  only  excep- 
tions are  found  in  what  are  known  as  "the  grandfather"  and 
"the  veteran"  clauses.  The  so-called  "grandfather  clause" 
provides  that  all,  whether  black  or  white,  who  could  vote  in 
1866,  and  their  direct  male  descendants,  may  vote,  provided 
they  shall  register  prior  to  a  certain  date.  The  so-called 
"veteran"  clause  provides  that  all,  black  and  white,  who 
served  in  any  war  of  the  United  States,  or  in  the  war  be- 
tween the  States,  may  vote  on  the  same  conditions.  The  time 
for  such  registration  has  already  expired  in  most  of  those 
States.  It  will  expire  in  all,  save  one  only,  on  the  1st  of 


116  READINGS  IN  CIVIL  GOVERNMENT 

January  next,1  and  it  will  expire  in  that  one  a  few  years  later. 
So  that  the  exceptions,  whether  wise  or  foolish,  are  only  tem- 
porary provisions.  And,  whatever  may  be  said  of  these  ex- 
ceptional and  temporary  provisions,  the  general  and  perma- 
nent provisions  are  certainly  not  open  to  objection.  They  are 
neither  illegal  nor  unjust.  The  Fifteenth  Amendment  is  not 
violated  by  them.  Every  State  is  free  to  fix  its  own  standard 
of  suffrage,  provided  it  applies  to  all  alike.  It  is  no  injus- 
tice to  a  citizen  to  withhold  from  him  the  ballot  until  he  shall 
have  accumulated,  say,  three  hundred  dollars'  worth  of  prop- 
erty and  learned  to  read  and  write  the  language  of  the  coun- 
try. It  may  be  thought  expedient  or  inexpedient ;  but  it  vio- 
lates no  vested  right,  either  under  the  law  of  nature  or  the 
fundamental  law,  so  long  as  the  conditions  apply  equally  to 
all  citizens. 

26.   THE    POSITION    OF    THE    FEDERAL    COURTS    WITH    REFERENCB 
TO   THE  RIGHT  OF   SUFFRAGE. 

Since  the  adoption  of  the  fourteenth  and  fifteenth  amendments 
a  great  number  of  cases  involving  the  suffrage  have  been  brought 
into  the  courts  based  largely  on  the  assumption  that  in  some  way 
these  amendments  extended  the  suffrage  to  all  citizens.  The  tend- 
ency of  the  decisions  of  the  Supreme  Court  in  these  cases  is  thus 
summarized  by  Mr.  J.  S.  Wise : 

In  the  first  case  which  arose  under  the  XIV  Amend- 
ment involving  the  right  of  suffrage,  the  Supreme  Court  was 
very  positive  in  its  statement  that  the  right  of  suffrage  was 
derived  exclusively  from  the  States;  that  it  was  not  an  inci- 
dental privilege  or  immunity  of  Federal  citizenship  before 
the  adoption  of  the  XIV  Amendment;  that  the  XIV 
Amendment  did  not  add  to  the  privileges  or  immunities 
which  it  undertook  to  protect;  that  suffrage  was  not 
even  coextensive  with  State  citizenship ;  that  neither  the  Con- 
stitution of  the  United  States  nor  the  XIV  Amendment  made 
all  citizens  voters;  and  that  a  provision  in  the  State  con- 
stitution limiting  suffrage  to  male  citizens  did  not  violate  the 

i  This  was  written  in  1903. 


POLITICAL  RIGHTS  AND  DUTIES  117 

Federal  Constitution.  In  the  next  case  in  which  suffrage 
was  considered  it  was  declared  that  the  XV  Amendment 
conferred  no  right  to  vote,  and  that  it  merely  invested  citi- 
zens of  the  United  States  with  the  right  of  exemption  from 
discrimination  against  them  (in  the  exercise  of  suffrage)  by 
reason  of  race,  color,  or  previous  condition;  but  that  the 
power  of  Congress  to  legislate  at  all  concerning  voting  at 
State  elections  rests  on  the  XV  Amendment,  and  can  be  ex- 
ercised only  by  providing  punishment  when  the  wrongful 
refusal  is  because  of  the  race  or  color  of  the  voter. 

In  the  case  of  U.  S.  vs.  Cruikshank,  it  was  said,  referring 
to  the  two  cases  above:  "The  Constitution  of  the  United 
States  has  not  conferred  the  right  of  suffrage  upon  any  one, 
and  the  United  States  have  no  voters  of  their  own  creation  in 
the  States."  .  .  . 

In  sundry  other  cases  recently  decided,  the  effort  has  been 
made  to  induce  the  Supreme  Court  to  consider  the  claims 
and  to  redress  the  wrongs  of  persons  who  alleged  that  they 
had  been  unlawfully  deprived  of  suffrage;  but  the  court  has 
refused  to  entertain  jurisdiction,  declaring  that  the  questions 
raised  are  political  and  call  for  redress  which  can  be  given 
only  by  the  legislative  and  executive  departments  of  the  gov- 
ernment. .  .  . 

While  this  has  been  the  attitude  of  the  Supreme  Court 
upon  suffrage  questions,  sundry  States  have  been  legislating 
upon  the  subject  in  such  a  way,  that,  on  one  pretext  or  an- 
other, large  bodies  of  citizens,  who  had  exercised  the  right 
of  suffrage  uninterruptedly  for  many  years  under  pledges 
given  to  Congress  by  the  States,  when  they  were  restored  to 
their  relations  in  the  Union,  that  their  suffrage  never  would 
be  curtailed,  have  been  deprived  of  their  right  to  vote. 
Despairing  of  obtaining  any  relief  from  the  Federal  judi- 
ciary, the  attempt  has  been  made  to  transfer  the  controversy 
to  the  House  of  Eepresentatives.  In  the  58th  Congress 
(1903-1905)  contests  were  made  up  from  the  State  of  South 
Carolina  in  the  House  of  Representatives,  which,  by  the 
terms  of  the  Constitution,  is  made  the  sole  judge  of  the 


118  READINGS  IN  CIVIL  GOVERNMENT 

elections,  returns,  and  qualifications  of  its  members.  (Arti- 
cle I,  Section  5,  Clause  1.)  The  issue  thus  presented  chal- 
lenged the  right  of  any  of  the  sitting  representatives  of 
South  Carolina  to  hold  their  seats  because  of  alleged  viola- 
tions of  the  Constitution  of  the  United  States  in  the  State 
constitution  and  the  laws  regulating  suffrage  under  which 
they  were  elected.  The  issues  were  squarely  presented  and 
called  for  a  decision  by  the  House;  but  the  committee  on 
elections  made  a  report  in  which  it  stated  that  the  cases  in- 
volved grave  constitutional  questions,  which,  if  decided  in 
favor  of  the  claimants,  would  go  to  the  very  foundation  of 
the  State  government  of  South  Carolina  and  would  perhaps 
affect  not  only  her  representation,  but  that  of  the  other 
States;  that  the  House  should  hesitate  about  taking  a  step 
which  might  be  so  far-reaching  in  its  consequences,  until  the 
legal  questions  involved  were  decided  by  the  courts  intrusted 
with  the  duty  of  constitutional  interpretation,  and  that  the 
courts  might  more  safely  be  relied  upon  for  correct  decision 
than  a  transitory  and  ever-changing  unprofessional  body  like 
the  House  of  Representatives.  And  so  the  matter  of  suf- 
frage rests;  the  courts  declining  to  pass  upon  it  as  a  political 
question,  and  Congress  insisting  that  it  is  a  judicial  ques- 
tion. . 

27.   THE  EDUCATION  OF  VOTERS. 

With  the  suffrage  as  widely  extended  as  it  is  in  the  Uniied  States 
there  must  necessarily  be  thousands  of  voters  who,  whether  able  to 
read  or  not,  go  to  the  polls  without  any  adequate  understanding  of  the 
questions  at  issue  in  the  election.  Now,  since  it  is  practically  im- 
possible to  withdraw  the  suffrage,  once  granted,  and  since  intelligent 
voting  is  of  the  essence  of  good  government,  how  may  this  ignorant 
electorate  be  instructed  in  the  art  of  government,  and  the  issues  so 
simplified  and  brought  home  to  the  individual  voter  that  he  may 
cast  his  ballot  knowingly?  In  the  following  selection  Mr.  George 
H.  Haynes  discusses  two  measures  by  means  of  which  the  State  of 
Oregon  is  attempting  to  solve  this  problem:  [1907]. 

The  first  of  these  laws — the  new  law  regulating  primary 
elections — is  intended  to  secure  for  the  voter  information  as 


POLITICAL  RIGHTS  AND  DUTIES  119 

to  the  political  aims  and  principles  of  the  men  for  whom  his 
suffrage  is  asked.  The  information  is  to  be  given  by  the 
would-be  candidates  themselves.  Each  man  seeking  nomina- 
tion for  office,  from  that  of  governor  down  to  that  of  county 
clerk,  in  order  to  get  his  name  upon  the  nominating  ballot, 
must  sign  and  file  with  the  proper  official  a  petition  stating 
his  residence,  declaring  himself  to  be  a  registered  voter  of 
the  specified  party,  and  pledging  himself  that,  if  nominated, 
he  will  accept  the  nomination  and  not  withdraw,  and  that, 
if  elected,  he  will  qualify  as  such  officer.  Then  follows,  in 
the  model  petition  set  forth  in  this  statute,  the  section  which 
constitutes  its  unique  feature : 

If  I  am  nominated  and  elected,  I  will  during  the  term  of  my  office 
(here  the  candidate,  in  not  exceeding  one  hundred  words,  may  state 
any  measures  or  principles  he  especially  advocates,  and  the  form  in 
which  he  wishes  it  printed  after  his  name  on  the  nominating  ballot, 
in  not  exceeding  twelve  words). 

Every  candidate  is  thus  made  the  builder  of  his  own  plat- 
form. Now  platform-building,  as  the  committee  on  resolu- 
tions of  many  a  political  convention  will  sadly  testify,  re- 
quires delicate  carpentry;  yet  this  law  takes  the  job  away 
from  the  political  carpenters'  union  and  turns  it  over  to 
any  candidate  who  can  wield  a  hammer  and  saw  wood.  But 
let  this  non-union  laborer  rejoice  with  trembling  and  build 
with  care ;  for  if  his  planks  be  too  wide  or  too  narrow,  if  they 
be  ill-matched  or  not  securely  spiked  down,  he  must  lay  the 
blame  of  his  downfall  not  to  the  work  of  others,  but  to  the 
unstable  footing  erected  by  his  own  unskilled  hands.  And 
if  the  making  of  a  platform  is  difficult  and  fraught  with 
dangers,  what  shall  be  said  of  an  attempt  to  compress  the 
platform  into  the  dimensions  of  a  foot-stool  ?  Who  has  not 
wrestled  over  the  phrasing  of  a  telegram,  because  only  ten 
words  will  go  for  a  quarter?  The  Oregon  aspirant  for  office 
is  limited  to  twelve  words,  and  in  this  compass  he  must  indi- 
cate his  political  creed,  his  favorite  policy  or  his  scheme  of 
patriotic  service.  He  must  try  to  find  for  his  platformette 
a  phrase  which  shall  serve  as  the  rallying  cry  of  his  cam- 


120  READINGS  IN  CIVIL  GOVERNMENT 

paign,  and  which  can  not  be  turned  against  its  author;  for 
what  shall  it  avail  him  to  fire  a  shot  heard  "round  the 
state"  if  his  projectile  prove  of  the  boomerang  order !  .  .  . 

These  provisions  in  the  primary  election  law  make  it  pos- 
sible for  the  voter  to  favor  the  candidate  who  puts  him- 
self most  straightforwardly  before  the  people  in  his 
personal  statement.  The  other  innovation  which  Oregon 
has  introduced  is  much  more  far-reaching  in  its  recognition 
of  the  state's  educational  function  in  preparing  the  voter  for 
his  task;  it  aims  to  put  into  his  hand  the  data  for  making 
up  his  mind  upon  measures  which  are  to  be  voted  upon. 
This  is  a  matter  of  no  slight  moment  in  a  community  where 
frequent  recourse  is  had  to  the  people  for  the  enactment  of 
laws.  The  provision  in  question  is  a  part  of  the  statute  regu- 
lating the  use  of  the  initiative  and  referendum.  It  was 
first  enacted  in  1903,  and  has  been  suggestively  modified  by 
the  legislature  of  the  present  year. 

Other  states  have  recognized  it  as  a  duty  to  furnish  free 
text-books  to  pupils  from  the  lowest  primary  grade  up 
through  the  high  school.  Oregon  has  decided  to  furnish  a 
free  text-book  to  her  adult  pupils  who  are  at  the  same  time 
her  rulers.  The  secretary  of  state  is  made  the  compiler  and 
distributor  of  this  text-book. 

The  law  makes  the  following  provisions : 

The  secretary  of  state  shall  cause  to  be  printed  in  pamphlet  form 
a  true  copy  of  the  title  and  text  of  each  measure  to  be  submitted 
(at  the  next  general  election)  with  the  number  and  form  in  which 
the  ballot  title  thereof  will  be  printed  on  the  official  ballot.  The 
person,  committee  or  duly  authorized  officers  of  any  organization 
filing  any  petition  for  the  initiative,  but  no  other  person  or  organiza- 
tion, shall  have  the  right  to  file  with  the  secretary  of  state  for 
printing  and  distribution  any  argument  advocating  such  measure. 
.  .  .  Any  person,  committee  or  organization  may  file  with  the 
secretary  of  state,  for  printing  and  distribution,  any  arguments  they 
may  desire,  opposing  any  measure.  .  .  .  But  in  every  case  the 
person  or  persons  offering  such  arguments  for  printing  and  dis- 
tribution shall  pay  to  the  secretary  of  state  sufficient  money  to  pay 
all  the  expenses  for  paper  and  printing  to  supply  one  copy  with 


POLITICAL  RIGHTS  AND  DUTIES  121 

every  copy  of  the  measure  to  be  printed  by  the  state;  and  he  shall 
forthwith  notify  the  persons  offering  the  same  of  the  amount  of 
money  necessary.  The  secretary  of  state  shall  cause  one  copy  of 
each  of  said  arguments  to  be  bound  in  the  pamphlet  copy  of  the 
measures  to  be  submitted  as  herein  provided,  and  all  such  measures 
and  arguments  to  be  submitted  at  one  election  shall  be  bound  to- 
gether in  a  single  pamphlet.  All  the  printing  shall  be  done  by  the 
state.  .  .  .  The  title  page  of  each  argument  shall  show  the 
measure  or  measures  it  favors  or  opposes  and  by  what  person  or 
organization  it  is  issued.  When  such  arguments  are  printed  he  shall 
pay  the  state  printer  therefor  from  the  money  deposited  with  him 
and  refund  the  surplus,  if  any,  to  the  party  who  paid  it  to  him. 
The  cost  of  printing,  binding  and  distributing  the  measures  pro- 
posed, and  of  binding  and  distributing  the  arguments,  shall  be  paid 
by  the  state  as  a  part  of  the  state  printing,  it  being  intended  that 
only  the  cost  of  paper  and  printing  the  arguments  shall  be  paid  by 
the  parties  presenting  the  same,  and  they  shall  not  be  charged  any 
higher  rate  for  such  work  than  is  paid  by  the  state  for  similar  work 
and  paper.  Not  later  than  the  fifty-fifth  day  before  the  regular  gen- 
eral election  at  which  such  measures  are  to  be  voted  upon,  the  secre- 
tary of  state  shall  transmit  by  mail,  with  postage  fully  prepaid,  to 
every  voter  in  the  state  whose  address  he  may  have,  one  copy  of 
Buch  pamphlet ;  provided,  that  if  the  secretary  shall,  at  or  about  the 
same  time,  be  mailing  any  pamphlet  to  every  voter,  he  may,  if  prac- 
ticable, bind  the  matter  herein  provided  for  in  the  first  part  of  said 
pamphlet. 

How  does  the  scheme  work?  There  has  as  yet  been  no 
opportunity  to  test  the  new  provisions  that  have  been  em- 
bodied in  the  law  this  year;  but  the  general  election  of 
1906  found  the  plan  in  operation  in  its  main  features,  at 
least,  and  the  results  throw  some  light  upon  the  problem. 
In  that  election  there  were  presented  to  the  people  of  the 
entire  state  ten  separate  measures  proposed  by  initiative 
petition  and  one  which  had  been  proposed  by  referendum 
petition.  In  some  of  the  counties  there  were  also  local 
initiative  propositions.  When  it  is  stated  that  these  meas- 
ures formed  the  tail-piece  to  a  ballot  on  which  were  the 
names  of  86  candidates  for  27  offices,  there  can  be  no  ques- 
tion that  this  was  the  Oregon  voter's  busy  day;  but  our 
present  concern  is  not  with  the  voting,  but  with  the  prep- 
aration for  it,  with  the  voter's  special  education  for  this 


122  READINGS  IN  CIVIL  GOVERNMENT 

service.  The  text-book  had  been  distributed  months  before 
election  day.  Nine  of  the  measures  were  sent  out  to  the 
voters  unaccompanied  by  any  arguments,  no  one  apparently 
being  sufficiently  interested  to  go  to  the  trouble  and  expense 
of  defending  or  attacking  them.  On  these  matters,  then, 
the  state  distributed  no  opinions,  but  it  did  put  into  every 
voter's  hand  the  precise  propositions.  Each  of  these  meas- 
ures had  a  title-page  in  prescribed  form,  which  told,  also, 
precisely  how  the  measure  would  appear  upon  the  ballot, 
for  example: 

PROPOSED  BY  INITIATIVE  PETITION. 

For  Equal  Suffrage  Constitutional  Amendment.  Vote  Yes 
or  No. 

302  Yes. 

303  No. 

The  proposed  laws  varied  in  length  from  one-third  of  a 
page  to  ten  pages,  each  page  containing  about  350  words. 
.  .  .  The  one  measure  which  was  presented  to  the  voters 
accompanied  by  arguments  was  a  so-called  "  equal  suffrage 
amendment"  to  the  state  constitution.  With  this  were 
bound  up  a  seven-page  argument  in  its  favor,  issued  by  the 
"Oregon  Equal  Suffrage  Association,"  and  a  twenty-three 
page  argument  against  the  amendment,  issued  by  the 
"  Oregon  State  Association  Opposed  to  the  Extension  of 
Suffrage  to  Women."  Each  of  these  pamphlets  presented 
a  forceful  array  of  arguments;  in  fact,  it  would  not  be  easy 
to  find  elsewhere  in  so  few  pages  a  more  cogent  statement 
of  both  sides  of  this  question  than  was  here  placed  in  the 
hands  of  every  Oregon  voter,  two  months  before  the  election. 
The  vote  upon  this  question  stood:  Yes,  36,902;  No,  47,075. 

The  text-book  for  this  election,  then,  comprised  about 
sixty  pages  of  copies  of  proposed  laws  and  of  political  dis- 
cussion. Had  these  pamphlets  been  sent  out  by  mail,  as 
is  to  be  done  under  the  existing  law,  the  postage  on  each 
would  have  been  three  cents,  making  a  total  of  about  $4,300 


POLITICAL  RIGHTS  AND  DUTIES  123 

for  placing  them  in  the  hands  of  all  the  voters  of  the  state. 
It  is  evident,  therefore,  that  the  supplying  of  free  text- 
books to  voters  is  a  somewhat  costly  enterprise.  Whether  it 
is  worth  while  or  not  depends  upon  its  results.  An  Oregon 
correspondent,  who  during  his  first  year  or  two  of  residence 
in  the  state  had  been  distinctly  of  the  opinion  that  the 
people  would  not  show  enough  interest  or  intelligence  to 
make  a  success  of  direct  legislation,  spent  the  weeks  before 
this  election  in  a  little  hamlet  on  the  western  slope  of  the 
Cascades.  He  writes : 

I  was  greatly  interested  in  the  attitude  of  the  people.  At  the  gen- 
eral store  (and  post-office)  there  was  an  impromptu  debating  society, 
and  men  and  measures  were  discussed  with  pungency.  .  .  . 
There  was  distributed  a  good  amount  of  literature  (the  text-book), 
giving  clear  statements  as  well  as  partisan  arguments  concerning  the 
different  measures.  Sample  ballots  were  distributed  also.  There 
can  be  no  question  of  the  fact  that  the  voters  were  much  interested, 
and  the  more  intelligent  ones  had  a  sense  of  responsibility  which 
made  them  express  themselves  with  a  good  deal  of  emphasis. 

When  election  day  came,  the  fact  of  the  people's  inter- 
est was  convincingly  shown.  The  total  number  of  votes 
cast  was  99,445.  The  initiative  measure  which  called  for 
most  discussion  was  the  suffrage  amendment,  and  upon  this 
84  per  cent,  of  the  voters  expressed  their  opinions.  On 
the  question  of  taxing  the  gross  earnings  of  public-service 
corporations  77  per  cent,  voted ;  while  even  the  one  of  these 
questions  which  evoked  least  interest  received  the  votes  of 
64  per  cent.  The  average  vote  in  law-making  and  constitu- 
tion-amending was  74.5  per  cent.  The  high  ratio  which 
these  votes  bear  to  the  votes  cast  for  state  officers  is  in 
contrast  with  the  ratio  in  many  other  states.  In  Massachu- 
setts, in  1896,  there  was  referred  to  the  people  a  proposed 
change  from  annual  to  biennial  elections;  not  more  than 
73  per  cent,  of  those  who  had  voted  for  governor,  and 
less  than  58  per  cent,  of  the  registered  voters  of  the  state, 
expressed  an  opinion  upon  this  question.  Even  in  Switzer- 
land, the  home  of  the  referendum,  this  same  indifference  is 


124  READINGS  IN  CIVIL  GOVERNMENT 

to  be  found.  "At  national  referenda,  which  excite  a  greater 
interest,  the  average  proportion  of  voters  who  go  to  the 
polls  is  less  than  sixty  per  cent.,  and  no  law  has  ever  been 
ratified  by  a  majority  of  the  qualified  voters." 

In  the  future  working  of  the  law  it  may  prove  necessary 
to  place  some  restrictions  upon  the  publication  of  material 
submitted  for  the  voters'  text-books.  Who  is  to  decide 
what  shall  go  into  such  pamphlets?  At  present  the  secretary 
of  state  is  charged  with  the  duty  of  compiling  them.  Appar- 
ently he  has  no  discretion  in  the  matter;  he  must  cause  to 
be  printed  and  distributed  any  matter  that  may  be  filed 
with  him  by  one  party  in  favor  of  a  given  measure,  and  by 
any  number  of  parties  in  opposition  thereto,  provided  only 
the  interested  parties  stand  ready  to  pay  for  the  printing 
and  paper  necessary  to  supply  every  voter  of  the  state  with 
a  copy.  .  .  . 

To  discriminate  between  that  which  is  and  that  which  is 
not  proper  material  for  the  state  to  put  in  the  hands  of  its 
voters  would  be  a  delicate  and  perhaps  dangerous  task; 
but  it  is  not  clear  that  such  discrimination  may  not  prove 
desirable.  Certainly  there  would  be  no  impropriety  or 
unfairness  in  the  state's  placing  a  limit  upon  the  amount  of 
printed  matter  which  it  will  distribute  for  any  one  organiza- 
tion or  upon  any  one  measure.  Indeed,  such  a  limitation 
might  prove  a  favor  in  disguise,  since  the  effectiveness  of 
campaign  documents  is  ordinarily  in  inverse  proportion  to 
their  bulk. 

In  these  devices  for  the  official  publication  and  free  distri- 
bution of  political  information  and  argument,  is  Oregon 
setting  the  pace  for  the  campaigns  of  education  of  the 
future?  The  writer  is  not  a  convert  to  the  idea  that  the 
increased  use  of  the  initiative  and  referendum  in  America 
is  desirable.  He  not  only  believes  that,  in  such  varied  com- 
munities as  our  states,  the  representative  system  has  distinct 
advantages  over  direct  democracy,  but  he  would  have  mem- 
bers of  the  legislature  genuine  representatives,  not  mere 
delegates  with  ears  to  the  ground.  But  if  the  work  of  law- 


POLITICAL  RIGHTS  AND  DUTIES  125 

making  is  to  be  transferred  from  legislative  chambers  to 
voting-booths,  he  is  convinced  that,  in  placing  political  infor- 
mation in  every  voter's  hand,  Oregon  is  not  trying  a  freakish 
experiment  but  rather  is  pursuing  the  only  sane  course. 

In  our  great  scientific  associations — for  example,  in  the 
American  Society  of  Civil  Engineers  with  its  more  than  4,000 
members — there  is  sent  to  every  member,  to  serve  as  a  basis 
for  his  vote,  a  precise  statement  of  proposed  changes  in 
the  constitution  or  by-laws  and  a  stenographic  report  of 
the  debate  at  the  society's  meetings.  In  our  legislatures, 
state  and  federal,  every  measure  that  is  to  be  voted  upon  lies 
in  print  upon  each  member's  desk,  and  every  such  document 
is  kept  up  to  date;  yet  it  is  both  the  member's  opportunity 
and  his  duty  to  be  present,  to  listen  to  and  to  participate 
in  the  most  thorough-going  discussion  of  legislative  projects. 
Such  sources  of  information  are  not  available  to  the  average 
voter.  In  time  it  will  be  recognized  that  faith  in  direct 
legislation  rests  on  a  very  shaky  foundation  unless  the 
state  places  before  each  vote,  as  it  has  always  placed  before 
each  member  of  a  legislature,  the  means  of  informing  him- 
self upon  every  question  which  he  is  to  take  part  in  de- 
ciding. 

This  will  mean  no  slight  burden  of  work  and  expense. 
But  what  educational  expenditure  by  the  state  will  bear  more 
directly  upon  the  safe-guarding  of  the  state's  own  inter- 
ests? For  years  there  have  been  allowed  to  each  member  of 
Congress  seeds  to  the  value  of  about  $225,  to  be  sent  at 
the  expense  of  the  government  to  the  people  in  his  district. 
The  theory  has  been  that  by  the  unloading  of  these  un- 
solicited and  miscellaneous  assortments  of  seeds  upon  the 
farmers  throughout  the  land  scientific  agriculture  would  be 
promoted.  Is  it  not  quite  as  logical  that  the  state  provide 
for  the  free  distribution  of  seeds  of  political  thought?  The 
cost  would  be  less ;  and  it  is  reasonable  to  hope  that  the  seed 
thus  distributed  would  show  quite  as  great  germinating  and 
productive  power  as  has  been  shown  by  that  sent  out  from 
Washington.  In  the  solution  of  the  problem  of  the  educa- 


126  READINGS  IN  CIVIL  GOVERNMENT 

tion  of  the  voters,  for  states  that  are  adopting  direct  legis- 
lation, Oregon  leads  the  ways. 

28.    THE  RESPONSIBILITY  OF  CITIZENSHIP. 

It  has  been  said  that  what  the  country  needs  is  not  more  voters 
so  much  as  more  active  and  intelligent  voting.  The  duty  of  the 
citizen  to  the  state  and  the  service  which  he  ought  to  be  willing  to 
render  to  the  state  in  return  for  the  protection  and  other  benefits 
which  the  state  confers  upon  him  is  the  subject  of  the  following  se- 
lection from  an  address  by  Governor  J.  W.  Folk : 

In  no  direction  is  the  need  greater  for  patriotic  energy 
and  earnest  effort  than  in  advancing  the  public  welfare.  In 
a  government  such  as  ours,  which  rests  on  the  people,  every 
man  should  take  an  active  interest  in  the  selection  of  those 
who  represent  the  people  in  official  capacity.  The  need  is 
for  more  men  actuated  by  the  public  good,  instead  of  those 
in  politics  for  revenue  only.  I  do  not  mean  the  need  for 
men  in  public  office  alone,  but  for  those  in  private  life,  for 
it  should  not  be  forgotten  that  it  is  as  essential  to  good 
government  for  private  citizens  to  discharge  the  responsibili- 
ties resting  upon  them  as  it  is  for  the  faithful  carrying  out 
of  official  obligations  in  the  public  service. 

Many  men  are  eager  to  go  to  war  and  give  up  their  lives 
for  their  country,  but  will  not  take  the  trouble  to  vote  in 
party  primaries  in  which  governmental  policies  have  their 
birth.  A  vote  on  the  day  of  some  general  election  is  not 
enough  to  meet  one's  civic  obligations.  Under  our  system 
political  parties  are  necessary,  for  it  is  through  political 
parties  that  men  come  to  an  agreement  on  public  policies, 
and  make  known  their  principles  and  intentions.  Party 
policies  are  inaugurated  and  party  tickets  are  conceived  in 
the  first  meetings  of  ward,  township,  or  county,  or  in  the 
primaries  to  select  delegates  to  conventions.  Not  only  should 
a  good  citizen  be  patriotic  on  primary  and  election  days — 
putting  the  public  good  always  above  mere  party  advantage 
— but  he  should  live  for  his  country  and  state  every  day. 
The  man  who  lives  for  his  country  is  as  true  a  patriot  as  he 


POLITICAL  EIGHTS  AND  DUTIES  127 

who  dies  for  his  country.  Patriotism  abides  not  alone  in 
the  roar  of  cannon,  amid  the  din  and  clash  of  arms,  but  in 
the  every-day  duties  of  civic  life.  .  .  . 

The  people  can  overthrow  civil  evils  whenever  they  want 
to  and  can  have  a  government  as  good  as  they  themselves 
make  it  or  as  bad  as  they  suffer  it  to  become.  There  is 
hardly  a  community  in  this  country  where  the  law-abiding 
people  are  not  in  the  majority.  They  are  usually  quiet, 
however,  while  the  other  side  are  so  vociferous  as  to  deceive 
some  into  the  idea  that  they  are  stronger  than  they  are.  The 
power  of  corruptionists  is  obtained  through  the  indifference 
of  good  citizens.  Bad  citizens  are  united,  good  citizens  are 
divided.  That  is  the  trouble.  If  good  citizens  could  be 
induced  to  join  hands  in  patriotic  endeavor,  the  bad  would 
be  shorn  of  their  strength  and  be  powerless  to  accomplish 
anything.  Law-breakers  are  always  organized  and  work 
while  good  people  sleep,  but  once  the  latter  are  aroused  they 
are  invincible. 

The  government  of  the  nation,  State,  and  city  rests  upon 
the  active  morality  of  the  average  individual.  In  propor- 
tion as  that  morality  is  strong  the  government  is  good; 
when  the  average  morality  is  low,  the  government  must  be 
inferior.  When  good  citizens  attend  to  their  civic  duties, 
their  civic  energy  is  represented  in  good  officials ;  when  they 
are  careless,  their  slothfulness  is  represented  by  corrupt 
officials.  The  character  of  government  depends  entirely 
upon  the  will  of  the  majority,  and  no  government  is  better 
than  a  majority  of  its  voters.  .  .  . 

To  arouse  the  people  and  make  them  exercise  their  civic 
duties  is  a  matter  of  supreme  importance.  In  a  monarchical 
form  of  government  all  authority  is  in  the  crown  and  dele- 
gated to  those  beneath.  Civic  indifference  there  is  not 
fraught  with  such  grave  consequences.  In  a  republic  like 
ours,  each  individual  is  a  constituent  part  of  sovereignty; 
each  man  is  one  seventy-nve-millionth  of  a  sovereign  on  the 
throne  of  American  manhood.  This  may  seem  small  but  it 
marks  the  distinction  between  the  citizen  and  the  subject. 


128  READINGS  IN  CIVIL  GOVERNMENT 

Some  may  think  if  the  government  were  left  entirely  to  you 
public  evils  could  not  exist.  But  you  have  a  portion  of  the 
responsibility  now.  If  you  are  unfaithful  in  part,  would 
you  be  more  faithful  with  all?  .  .  .  If  each  citizen  were 
to  leave  the  remedying  of  public  wrongs  to  some  one  else, 
nothing  would  be  accomplished. 

The  State  protects  the  citizen,  and  the  citizen  must  protect 
the  State,  politically  as  well  as  financially,  and  his  civic 
duties  are  as  morally  binding  as  his  taxes.  If  each  man  were 
to  think  that  he  is  only  one  among  many  and  that  it  is  un- 
necessary for  him  to  pay  taxes  because  there  will  be  plenty 
without  him,  the  State  would  be  bankrupt  if  it  could  not 
enforce  payment.  If  every  man  were  to  reason  that  among 
so  many  his  influence  for  good  is  not  needed,  then  the  State 
would  be  bankrupt  politically  and  we  would  have  a  govern- 
ment of  the  few  with  wealth  enough  to  purchase  official 
favors.  There  is  sometimes  too  much  of  a  disposition  on 
the  part  of  some  to  allow  others  to  do  the  face-sweating  in 
civic  affairs  while  they  do  the  bread-eating.  Our  govern- 
ment in  theory  gives  more  rights  than  any  other,  but  some 
think  so  little  of  their  obligations  to  the  general  welfare  that 
they  are  often  indifferent  to  being  robbed  as  long  as  they  do 
not  feel  the  effects  directly  and  are  among  the  many. 

ADDITIONAL  READINGS 

1 — Political  Duties  and  Political  Rights,  Woodburn,  J.  A., 
Political  Parties  and  Party  Problems,  220-32. 

2 — American  Domestic  Problems,  Abbott,  L.,  The  Rights  of 
Man,  216-50. 

3 — Some  Causes  of  the  Stability  and  Success  of  our  Dual 
System  of  Government,  Landon,  J.,  Constitutional  His- 
tory and  Government  of  the  United  States,  303-28. 

4 — The  Strength  of  American  Democracy,  Bryce,  J.,  American 
Commonwealth,  II,  59-1-606. 


PART  II 
THE  FOKM  OF  AMERICAN  GOVEENMENT 

CHAPTER  VII 
THE  HOUSE  OP  REPRESENTATIVES 

29.    THE   SPEAKER   OP    THE   HOUSE   OP    REPRESENTATIVES. 

The  central  figure  in  the  House  of  Representatives  is,  of  course, 
the  Speaker.  At  the  beginning  of  our  government  the  Speaker  was 
merely  an  impartial  presiding  officer,  as  is  the  Speaker  of  the  House 
of  Commons  to  the  present  day,  and  not  necessarily  the  member  of 
the  dominant  party  with  the  longest  congressional  career  or  great- 
est influence.  He  did  not  acquire  the  exclusive  power  to  appoint 
committees  until  the  Fourth  Congress,  but  after  that  event,  and 
largely  because  of  it,  his  influence  steadily  increased.  In  1890 
Speaker  Reed  devised  a  new  rule  for  counting  a  quorum  and 
broke  up  filibustering  by  refusing  to  entertain  dilatory  motions. 
He  was  at  once  denounced  as  a  "Czar"  and  the  Speaker  has  since 
then  often  been  called  the  "Autocrat  of  Congress,"  the  "absolute 
arbiter  of  the  destinies  of  all  legislation."  In  the  following  selec- 
tion Mr.  Asher  C.  Hinds,  for  many  years  Clerk  at  the  Speaker's 
Table,  describes  the  Speaker's  position  since  the  days  of  Mr.  Reed 
and  explains  why  it  is  necessary  for  him  to  have  such  large  powers : 
[1909]. 

One  familiar  with  the  procedure  of  the  House  for  the  last 
fifteen  years  cannot  be  otherwise  than  surprised  at  the  con- 
fidence of  the  assertions  that  the  House  has  ceased  to  be 
either  a  deliberative  body  or  an  efficient  legislating  body. 
9  129 


130  READINGS  IN  CIVIL  GOVERNMENT 

Those  who  know  well  its  practice  will  rather  believe  that  no 
other  legislature  of  its  size,  as  to  membership  and  quorum, 
has  a  system  equaling  it  in  fairness,  liberality  and  efficiency. 
On  the  great  questions  of  revenue  and  appropriations, 
which  are  the  first  questions  among  all  free  peoples,  its 
system  is  famous  for  the  unrivaled  manner  in  which  it  con- 
centrates searching  and  intelligent  deliberation  on  every  item, 
without  discrimination  between  members  as  to  party  or 
length  of  service.  And  its  more  formal  debates  are  regulated 
with  equal  liberality  and  fairness.  The  statement  that  no 
member  speaks  without  securing  prior  consent  of  the  speaker 
has  hardly  a  shred  of  truth  by  which  to  hang.  The  speaker 
recognizes  for  debate,  it  is  true,  and  there  is  no  appeal  from 
his  recognition  because  the  house  cannot  afford  time  for 
such  a  process;  but  the  speaker  recognizes,  in  the  great 
majority  of  instances,  not  arbitrarily,  but  according  to  cer- 
tain usages  which  have  the  force  of  rules.  And  these  usages 
secure  recognition  to  those  members  who,  by  the  arrangement 
of  committees  and  business,  are  presumably  best  informed  on 
the  subject  for  and  against  the  pending  proposition.  Of 
course  every  egotist  in  the  House  may  not  intrude  himself 
into  the  first  place  in  every  debate.  A  system  that  per- 
mitted this  would  be  intolerable,  although  it  would  please 
the  egotists  and  would  cut  off  one  very  noisy  source 
of  criticism.  But  even  as  it  is  no  egotist  suffers  from 
the  tyranny  of  the  modest  men.  The  story  is  frequently 
told,  and  used  as  a  conclusive  argument,  that  Mr.  Speaker 
Reed  thanked  God  that  the  House  was  not  a  delibera- 
tive body.  It  was  true  that  he  did  once  give  utterance  to 
such  an  expression,  but  it  was  when  someone  told  him  of  a 
senator  who  had  spoken  four  or  five  hours  to  the  empty  seats 
of  his  disgusted  colleagues,  and  proposed  to  continue  the 
performance  on  the  next  day.  The  Speaker  was  thankful 
that  the  hour-rule,  which,  by  the  way,  had  then  existed  for 
fifty  years,  did  not  permit  such  a  performance  in  the  House. 
It  was  one  of  the  great  aims  of  Mr.  Speaker  Reed,  as  those 
who  knew  him  can  testify,  to  restore  to  the  House  that 


THE  HOUSE  OF  REPRESENTATIVES          131 

orderly,  intelligent  deliberation  which  the  fathers  had  known, 
and  which  the  violence  of  the  filibuster  had  impaired.  He 
overthrew  the  filibuster,  and  as  the  passions  of  that  conflict 
subsided,  the  old  deliberation  gradually  returned.  In  the 
last  twelve  years,  under  normal  conditions,  the  House  has 
been  a  real  deliberative  body.  When  abnormal  conditions 
arise;  as  they  did  at  the  end  of  the  first  session  of  the  six- 
tieth congress,  the  majority  are  obliged  to  declare  a  form  of 
martial  law  in  order  to  do  the  business  necessary  for  the 
supply  of  the  government.  But  such  conditions  are  wholly 
exceptional  and  have  arisen  only  two  or  three  times  in  twelve 
years. 

The  demonstration  that  the  modern  speaker  is  a  normal, 
and  not  an  abnormal,  example  of  the  speaker  of  the  Consti- 
tution, does  not,  however,  answer  the  criticism  that  too  much 
power  is  given  him  by  the  rules.  At  this  point  it  is  necessary 
to  guard  against  a  confusion  of  ideas.  The  man  whom  the 
representatives  of  the  people  choose  as  their  chief  will 
ordinarily  be  a  man  of  great  personal  influence.  The  elec- 
tion of  speaker  is  not  like  a  popular  election,  where  the 
voter's  knowledge  of  the  candidate  is  derived  second-hand. 
Most  of  those  who  elect  a  speaker  know  him  personally,  from 
intimate  association  and  observation  on  the  floor  of  the  House. 
The  politician  who  cultivates  reputation,  by  judicious  posing 
and  advertising,  will  hardly  advance  far  in  the  House, 
unless  he  be  one  of  the  rare  individuals  of  his  kind  who  have 
the  actual  character  to  go  with  the  reputation.  On  the 
other  hand,  the  blunt,  honest  man,  who  values  the  truth 
above  the  praise  of  men,  and  is  willing  to  risk  popularity 
in  doing  his  duty,  always  commends  himself  strongly  as  his 
fellows  come  to  know  him  in  the  struggles  and  contentions 
of  the  great  hall.  The  influence  of  character  is  one  of  the 
greatest  powers  in  politics.  Hence,  the  one  who  is  chosen 
speaker  will  always  be  powerful  in  his  own  right,  so  long  as 
the  speaker  is  chosen  after  the  manner  of  our  American 
fathers,  as  a  leader  of  the  House.  If  leadership  is  to  be 
placed  elsewhere  in  the  body,  the  strong  man  or  men  of  the 


132  READINGS  IN  CIVIL  GOVERNMENT 

House  will  gravitate  to  the  new  depository,  and  the  speaker, 
having  become  a  mere  presiding  officer,  will  undoubtedly  de- 
generate in  character  and  influence. 

The  great  source  of  the  speaker's  power  is  the  function  of 
appointing  the  committees,  which  he  has  exercised  for  more 
than  a  hundred  years.  All  propositions  are  referred  to  the 
committees  for  consideration  and  report.  Members  may 
refer  bills  to  committees  with  great  freedom,  but  if  a  com- 
mittee fails  or  declines  to  report,  the  member  may  not  move 
to  discharge  the  committee  for  the  reason  that  the  regular 
order  of  business  includes  no  place  for  such  a  motion,  and 
a  demand  for  the  "regular  order"  shuts  it  out.  It  is  prob- 
ably necessary  that  this  be  so,  for  if  the  member  might 
move  to  discharge  a  committee,  the  House  would  be  con- 
fronted with  a  possibility  of  more  than  twenty  thousand  of 
such  motions,  since  a  vast  number  of  bills  are  referred  to 
committees.  The  House  is  not  powerless,  however,  against 
an  obstinate  or  neglectful  committee,  as  the  motion  to  dis- 
charge a  committee  may  be  adopted  by  majority  vote  on  being 
reported  by  the  committee  on  rules,  which  is  composed  of 
the  speaker  and  four  other  members. 

This  grasp  of  the  committees  on  the  business  of  the  House 
is  the  main  citadel  of  the  speaker's  power  so  far  as  it  is 
dependent  on  the  rules.  The  main  element  of  it  is  the 
appointing  power,  since  the  discharging  power  is  lodged  in 
a  committee,  wherein  his  authority  is  necessarily  consider- 
ably modified. 

But  the  appointing  power  is  far  from  absolute.  In  a  new 
Congress  there  will  not  ordinarily  be  vacancies  in  more 
than  a  third  of  the  places  on  any  committee,  and  on  the 
important  committees,  where  the  strongest  men  are  gathered, 
the  proportion  is  usually  less.  It  is  a  usage  not  often  dis- 
regarded that  a  man  once  appointed  to  a  committee  remains 
there  until  promoted  to  a  more  desirable  post.  Mr.  Sereno 
E.  Payne  has  served  on  ways  and  means,  which  is  the  great- 
est committee  of  the  House,  for  twenty  years,  and  Mr.  John 
Dalzell  has  been  on  the  same  committee  for  eighteen  years. 


THE  HOUSE  OF  REPBESENTATIVES          133 

This  illustrates  the  permanency  of  tenure,  which  does  not 
change  with  changes  of  party  control  in  the  House.  It  is 
manifest  that,  with  these  conditions  existing,  it  is  very  diffi- 
cult for  a  speaker  to  make  up  a  committee  according  to  per- 
sonal whim,  or  "pack"  it,  as  the  phrase  goes.  He  can  and 
always  does  aim  to  add  to  each  committee  new  men  who  will 
continue  the  committee  in  certain  general  policies  favored  by 
his  party.  In  other  words,  he  acts  as  the  responsible  agent 
of  party  government.  During  the  last  six  years,  Mr.  Speaker 
Cannon  has  permitted  the  minority  leader  to  name  the 
minority  members  of  the  committees,  thus  restricting  still 
further  his  own  opportunities  for  moulding  the  sentiment 
of  the  committees.  .  .  . 

It  is  not  conceivable  that  the  House  of  Eepresentatives 
will  ever  permit  the  efficiency  of  party  control  and  party 
responsibility  to  be  impaired  by  any  irresponsible  method  of 
selecting  its  committees.  Is  there  any  better  method  than 
by  placing  the  duty  on  a  speaker,  who  must  perform  it  in 
full  view  of  the  House  and  the  nation,  with  no  possibility  of 
evading  the  responsibility?  The  only  other  alternative 
would  be  to  have  the  appointments  made  by  a  committee, 
which  would  necessarily  operate  in  practical  secrecy,  and 
wherein  each  member  might,  when  challenged,  shift  responsi- 
bility to  his  fellow,  so  that  the  House  and  the  nation  could 
never  locate  it  definitely,  except  after  laborious  inquiry. 

The  power  of  the  speaker,  as  it  is  related  to  the  commit- 
tee on  rules,  is  much  overestimated.  When  a  committee  has 
once  reported  a  bill,  that  bill  is  in  the  hands  of  the  House. 
The  speaker  and  the  committee  on  rules  are  alike  powerless 
to  prevent  its  consideration  and  passage.  They  may  acceler- 
ate its  progress  by  reporting  a  special  order,  and  they  do 
this  for  a  few  bills,  perhaps  a  dozen  out  of  a  thousand  or 
more  at  a  session  of  congress.  The  committee  on  rules 
exercise  the  function  as  responsible  party  agents;  and  in 
modern  practice  the  special  order  has,  in  fact,  taken  the  place 
of  the  party  caucus.  There  was  once  a  great  outcry  against 
"King  Caucus."  That  is  heard  no  more,  and  in  place  of 


134  READINGS  IN  CIVIL  GOVERNMENT 

it  we  hear  only  denunciations  of  the  committee  on  rules. 
The  majority  members  of  that  committee  inform  themselves 
thoroughly  of  the  sentiment  of  the  responsible  party  in  the 
House.  If  members  of  the  responsible  party  feel  that  the 
committee  on  rules  is  not  acting  in  conformity  with  the  party 
sentiment,  a  caucus  may  be  called  on  the  demand  of  fifty 
members;  and  the  committee  would  not  think  of  disregard- 
ing the  pronounced  wish  of  that  caucus.  And  at  the  recent 
organization  of  the  House,  the  republican  caucus  specified 
the  members  who  should  be  appointed  to  represent  the  party 
on  the  committee.  This  makes  the  committee  on  rules  in 
theory  what  it  has  long  been  in  practice. 

For  the  purpose  of  a  large  House  of  Representatives  and 
a  populous  nation,  could  there  be  a  better  system?  The 
responsibility  for  the  organized  efficiency  of  the  controlling 
party  in  the  House  is  placed  on  the  speaker,  a  conspicuous 
officer  of  high  character.  If  he  betrays  or  mal-administers 
the  trust  confided  in  him  and  does  not  proceed  according  to 
the  main  lines  of  his  party's  policies,  his  party  associates  may 
replace  him  in  the  next  congress.  Indeed,  it  is  possible  at 
any  time  for  a  majority  of  the  House  to  remove  its  speaker. 
It  has  several  times  removed  its  clerk  or  doorkeeper,  who, 
like  the  speaker,  are  officers  of  the  House  under  the  constitu- 
tion. 

If  the  speaker  is  sustained  by  his  party  in  the  House  in 
his  organization  of  the  committees,  but  that  organization 
does  not  subserve  the  public  will,  then  the  people  know  at 
once  where  to  put  the  responsibility,  namely,  on  the  responsi- 
ble majority  party. 

It  is  of  prime  importance  that  a  self-governing  people 
should  know  readily  and  definitely  where  to  place  responsi- 
bility, and  the  present  rules  of  the  House  further  this  pur- 
pose admirably  as  to  the  great  questions  at  issue.  As  to  the 
minor  questions,  it  is  not  so  easy  to  fix  responsibility,  because 
the  speaker,  in  framing  the  committees,  usually  fills  only  the 
vacancies  in  each  new  congress,  and  reaches  the  extent  of 
his  opportunities  when  he  has  provided  for  the  main  lines 


THE  HOUSE  OF  REPRESENTATIVES          135 

of  party  policy.  All  other  systems  of  arranging  committees 
must  necessarily  have  the  same  limitations  as  to  minor 
questions. 

To  a  thoughtful  man  the  query  naturally  arises:  "If  the 
present  system  is  so  excellent,  why  are  the  speaker  and  the 
rules  criticised  so  constantly?" 

The  answer  is  simple.  Having  a  considerable  degree  of 
power  as  to  directing  the  House  in  the  main  lines  of  his 
party's  policy,  the  country  and  many  members  of  the  house 
assume  that  he  may  be  equally  potent  as  to  every  minor  and 
local  question.  Possibly  he  might  for  a  short  time  and  for  a 
limited  number  of  questions.  But  as  he  is  the  leader  of  his 
party  in  the  House,  his  every  act  commits  or  compromises  that 
party.  Hence  it  is  wiser  to  leave  the  minor  and  local  ques- 
tions to  be  passed  on,  first  by  the  committees  to  which  they  are 
referred  under  the  rules  and  then,  if  the  committees  endorse 
them,  by  the  House  itself.  The  House  may  pass  any  bill 
which  a  committee  has  reported ;  and  the  rules  give  the  speaker 
no  power  to  prevent. 

But  the  minor  and  the  local  matters  are  usually  of  great 
importance  to  the  political  prospects  of  a  few  members,  and 
of  so  little  interest  to  the  whole  House  that  it  is  often  beyond 
the  power  of  their  friends  to  muster  the  votes  to  get  action 
on  them.  Hence  the  speaker  is  importuned  constantly  to  as- 
sist the  member  to  get  unanimous  consent  to  set  the  rules  aside 
and  force  consideration  by  a  short  cut.  The  speaker,  being 
responsible  for  the  great  lines  of  policy,  especially  for  the  sum- 
total  of  expenditures,  must  be  very  cautious  about  entering 
into  these  arrangements.  And  when  he  refuses,  the  member, 
if  he  be  human,  makes  haste  to  write  his  constituents  that  he 
could  pass  the  bill  if  the  speaker  would  give  the  opportunity. 
The  bill  usually  involves  the  expenditure  of  national  money 
in  a  way  very  desirable  to  the  member's  constituents;  and 
they  unite  with  him  in  denouncing  the  speaker  and  the  rules. 
Sometimes  the  work  affects  several  districts,  or  even  several 
States,  thus  giving  greater  body  and  momentum  to  the  criti- 
cism. 


136  READINGS  IN  CIVIL  GOVERNMENT 

At  the  first  of  the  present  session  certain  changes  were 
made  in  the  rules,  one  of  which  permits  bills  to  be  placed  on  a 
calendar  for  unanimous  consent.  This  calendar  is  to  be  called 
twice  a  month  and  will  enable  members  to  get  their  bills  be- 
fore the  House  without  supervision  of  the  speaker.  The  effect 
of  the  arrangement  will  be  to  relieve  the  speaker  of  an  irk- 
some and  dangerous  responsibility  and  distribute  it  among 
the  members.  It  may  diminish  the  speaker's  power  in  the 
House  somewhat ;  and  it  will  certainly  relieve  him  of  a  source 
of  unpopularity  in  the  country. 

Several  other  changes  were  made  at  the  same  time,  includ- 
ing the  establishment  of  a  Calendar  Wednesday,  when  the 
House  will  be  forced  to  consider  certain  business  which  it  has 
hitherto  been  neglectful  of,  preferring  to  go  on  with  the  great, 
essential  bills  and  then  adjourn.  Some  of  the  new  business 
will  consist  of  general  and  public  measures  which  have  perhaps 
been  unduly  neglected ;  but  much  of  it  will  be  of  local  and  per- 
sonal concern,  bringing  charges  on  the  treasury  for  advantage 
of  localities.  Another  charge  makes  it  easier  for  the  minority 
party  in  the  House  to  obtain  record  votes  on  propositions  of 
legislation  which  it  may  desire  to  put  forward. 

The  effect  of  the  recent  changes  as  a  whole  is  to  take  away 
from  the  speaker  certain  functions  and  vest  them  in  the  mem- 
bers, and  to  restrict  somewhat  the  House 's  power  to  go  at  any 
time  to  any  matter  of  business  on  its  calendars.  Members 
who  desire  to  get  action  on  bills  of  interest  to  their  constitu- 
ents rather  than  of  general  interest  will  be  relieved.  The 
House  will  also  be  forced  to  act  on  some  bills  of  national  in- 
terest which  it  would  prefer  to  let  go  to  a  more  convenient 
season. 

30.   THE  RULES  OP  THE   HOUSE. 

Mr.  John  Dalzell,  a  member  of  the  committee  on  rules,  gives  the 
following  account  of  the  methods  by  which  the  House  proceeds  in 
the  enactment  of  legislation:  [1908]. 

The  rules  of  the  National  House  of  Representatives  are  not 
the  conception  of  any  one  man  or  set  of  men;  they  are  not 


THE  HOUSE  OF  REPEESENTATIVES          137 

the  product  of  any  one  Congress  or  of  any  combination  of 
Congresses;  they  are  an  evolution,  the  outgrowth  of  the  par- 
liamentary experience,  necessities  and  exigencies  of  all  the 
hundred  years  and  more  of  our  Congressional  life.  The  book 
of  rules  contains  no  rule  that  had  not  a  reasonable  necessity 
for  its  adoption  in  the  first  instance  and  has  not  a  like  necessity 
for  its  continuance  now.  As  a  whole  the  rules  are  so  made  as 
to  render  possible  the  most  expeditious  accomplishment  in  the 
wisest  way  of  the  legislative  business  of  our  ninety  millions  of 
American  people.  There  have  been  two  revisions  of  the  rules 
within  the  last  thirty  years. 

In  the  Forty-sixth  Congress  (1880)  the  rules  were  revised 
under  the  direction  of  the  Committee  on  Rules,  consisting  of 
Speaker  Randall  and  Messrs.  Stephens,  Blackburn,  Garfield 
and  Frye.  The  changes  then  made  consisted  mainly  in  drop- 
ping a  number  of  rules  that  by  reason  of  changed  conditions 
had  become  obsolete,  in  consolidating  a  number  of  others  and 
changing  their  arrangement,  and  in  the  introduction  of  a  very 
few  new  rules.  .  .  . 

The  rules  then  adopted  remained  in  force  until  the  Fifty- 
first  Congress  (1890),  when  they  were  revised  by  the  Com- 
mittee on  Rules,  consisting  of  Speaker  Thomas  B.  Reed, 
Messrs.  McKinley,  Cannon,  Carlisle  and  Randall.  By  this 
revision,  out  of  the  total  number  of  forty-seven  rules,  twenty- 
nine  were  allowed  to  remain  unchanged,  and  in  the  remain- 
ing eighteen  such  changes  as  were  made  were  only  formal, 
except  in  four  fundamental  particulars.  These  related  to  (1) 
dilatory  motions,  (2)  the  counting  of  a  quorum,  (3)  the  num- 
ber which  should  constitute  a  quorum  in  Committee  of  the 
Whole,  and  (4)  the  order  of  business.  This  last  revision  was 
found  necessary  in  order  to  carry  out  the  announced  objects 
sought  to  be  attained  by  the  revision  of  1880,  viz. :  "Economy 
of  time,  order  and  the  right  of  a  majority  to  control  and  dis- 
pose of  the  business  for  which  it  is  held  responsible." 

Prior  to  this  last  revision,  under  then  existing  rules,  the 
practice  known  as  filibustering  had  grown  to  such  an  extent 
as  to  waste  much  valuable  time  and  to  threaten  the  power  of 


138  READINGS  IN  CIVIL  GOVERNMENT 

the  majority  to  deal  with  the  business  of  the  country.  By 
the  use  of  the  privileged  motions  "to  adjourn  to  a  day  cer- 
tain," and  "to  take  a  recess,"  and  the  practice  on  the  part 
of  members  of  remaining  silent  and  refusing  to  vote,  thus 
breaking  a  quorum,  it  was  in  the  power  of  the  minority  at 
any  time  effectually  to  obstruct  the  passage  of  any  legislation. 
A  motion  to  adjourn  to  a  day  certain  was  subject  to  two 
amendments,  on  each  of  which  as  well  as  on  the  original  mo- 
tion the  yeas  and  nays  could  be  ordered.  The  same  was  true 
as  to  the  motion  to  take  a  recess;  these  motions  could  be  re- 
peated without  limit  and  thus  days  could  be  consumed  in 
useless  calls  of  the  roll.  In  point  of  fact,  in  the  Fiftieth  Con- 
gress on  one  occasion  the  House  remained  in  continuous  ses- 
sion eight  days  and  nights,  during  which  time  there  were  over 
one  hundred  roll  calls  on  the  iterated  and  reiterated  motions 
to  adjourn  and  to  take  a  recess  and  their  amendments.  On 
this  occasion  the  reading  clerks  became  so  exhausted  that  th»-y 
could  no  longer  act,  and  certain  members  possessed  of  large 
voices  and  strenuous  lungs  took  their  places.  If  this  was  not 
child's  play  it  would  be  difficult  to  define  it.  Then  again, 
when  a  measure  to  which  the  minority  objected  was  likely  to 
pass,  the  yeas  and  nays  would  be  ordered.  The  objecting 
minority  members,  sitting  in  their  seats,  would  fail  to  respond 
when  their  names  were  called,  and  when  the  count  was  made 
it  would  appear  that  there  was  no  quorum  present  to  do  busi- 
ness and  thus  the  measure  would  fail.  It  seei.is  now  strange 
to  realize  that  many  eminent  men  acting  as  Speakers  of  the 
House  maintained  that  for  this  manifest  evil  no  remedy  ex- 
isted. It  remained  for  the  Speaker  of  the  Fifty-first  Con- 
gress, Thomas  B.  Reed,  the  greatest  parliamentary  leader  in 
the  history  of  the  English-speaking  people,  to  make  an  end  of 
this  manifest  absurdity.  He  declared  that  physical  presence 
and  constructive  absence  was  impossible;  that  the  quorum 
called  for  by  the  Constitution  was  a  present  and  not  a  voting 
quorum;  and  so,  on  a  certain  historic  occasion,  he  added  to 
the  names  of  those  voting  the  names  of  those  present  and  not 
voting  and  announced  the  result  accordingly.  He  has  no 


THE  HOUSE  OF  REPRESENTATIVES          139 

greater  glory  than  that  the  principles  he  announced  and  put 
into  practice  have  not  only  been  endorsed  by  the  Supreme 
Court  of  the  United  States,  but  also  by  his  partisan  foes  when 
they  came  into  power  in  the  House,  and  by  the  practical  re- 
sults which  recent  years  of  wise  legislation  unobstructed  by 
foolish  tactics  have  put  on  the  statute  book.  Under  present 
rules  the  motion  to  adjourn  to  a  day  certain  and  the  motion 
to  take  a  recess  are  not  privileged,  and  furthermore  the 
Speaker  is  not  allowed  to  entertain  any  dilatory  motion.  If 
a  quorum  has  been  ascertained  by  actual  count  to  be  present, 
a  measure  voted  on  passes  or  fails 'in  accordance  with  the  re- 
corded vote,  whether  all  members  have  voted  or  not. 

In  the  Committee  of  the  Whole  100  now  constitutes  a  quo- 
rum instead  of  a  majority  of  the  whole  House.  This  is  in 
the  interest  of  the  expedition  of  business. 

Bills  are  not  introduced  by  filing  and  not  by  presentation 
in  the  open  House,  and  thus  much  time  is  saved.  Business 
once  entered  upon  is  continued  until  completed,  instead  of  as 
under  prior  rules  being  limited  to  a  certain  time  for  its  consid- 
eration and  then  not  having  been  concluded  being  sent  to  the 
graveyard  of  the  calendar  of  unfinished  business. 

In  the  last  Congress  (59th)  there  were  386  members  (in 
this  Congress  there  are  391),  and  there  were  introduced  a 
(total  of  bills  and  resolutions  numbering  27,114.  It  goes  with- 
Jout  saying  that  not  all  of  these  bills  could  be  considered  nor 
could  all  of  these  members  have  a  hearing.  Theoretically 
every  member  of  the  House  is  the  equal  of  every  other  mem- 
ber; every  constituency  is  entitled  to  equal  recognition  with 
every  other  constituency,  but  practically  there  cannot  be  391 
Speakers;  there  cannot  be  391  chairmen  of  Committees,  nor 
equal  recognition  for  debate  given  to  391  members.  The 
real  purpose,  then,  to  be  accomplished  by  the  rules  is  the  se- 
lection from  the  mass  of  bills  introduced  those  proper  to  be 
considered.  There  is  no  limitation  on  the  right  of  a  member 
to  introduce  bills;  as  many  as  he  likes  and  of  whatever  char- 
acter he  pleases.  Every  bill  introduced  goes  to  an  appro- 
priate committee  for  consideration,  and  whether  or  not  it  gets 


140  READINGS  IN  CIVIL  GOVERNMENT 

upon  a  House  calendar  for  action  depends  upon  its  being  re- 
ported by  the  committee.  It  may  never  be  reported,  and,  of 
course,  if  not  reported  can  never  be  considered  in  the  House. 
In  the  last  Congress,  of  the  27,114  bills  and  resolutions  intro- 
duced there  were  7,839  reported;  the  others  remained  in  the 
pigeon-holes  of  the  various  committees.  Of  the  bills  re- 
ported, 7,423  were  considered  and  passed.  Bills  when 
reported  go  upon  certain  calendars  of  the  House,  according  to 
the  character  of  the  bills. 

1.  Revenue  and  appropriation  bills.     These  are  few  in  num- 
ber, not  to  exceed  perhaps  twenty.     They  come  from  the  Com- 
mittee on  Ways  and  Means,  whose  office  it  is  to  provide 
revenue  for  the  Government,  and  from  the  Committee  on  Ap- 
propriations, and  from  the  several  committees  having  to  do 
with  the  maintenance  of  the  Government  in  its  various  arms, 
such  as  the  Naval  Committee,  the  Military  Committee  and 
others.     These  bills  when  reported  go  to  a  calendar  known  as 
the  Union  Calendar,  but  they  are  highly  privileged,  as  they 
ought  to  be,  for  without  their  passage  the  Government  wheels 
would  stop.    They  can  be  called  for  consideration  at  any  time. 
They  take  precedence  of  all  other  bills,  and  the  Speaker  has 
no  alternative  but  to  recognize  the  member  calling  them  up. 
These  bills  are  considered,  not  in  the  House,  but  in  Commit- 
tee of  the  Whole;  the  Speaker  leaves  the  chair  and  another 
member  takes  his  place. 

2.  Another  class  of  bills  are  such  as  relate  to  some  public 
purpose,  but  carry  no  appropriation,  such,  for  instance,  as 
bridge  bills  and  the  like.     To  a  large  extent  bills  from  the 
important  committees  on  the  Judiciary  and  on  Interstate  and 
Foreign  Commerce  are  of  this  class.     These  bills  go  on  the 
House  calendar  and  are  entitled  to  consideration  in  the  morn- 
ing hour.     There  being  no  privileged  bills  for  consideration, 
the  morning  hour  is  the  regular  order.     The  Speaker  must 
call  the  committees  in  their  alphabetical  order,  and  then  the 
chairman  of  the  committee  which  has  the  call  is  entitled  to 
recognition  by  the  Speaker  as  of  right.     The  House  then  pro- 
ceeds to  the  consideration  of  such  bill  reported  by  the  commit- 


THE  HOUSE  OF  REPRESENTATIVES          141 

tee  in  question  and  then  on  the  House  calendar  as  the  chair- 
man calls  up,  and  continues  its  consideration  until  a  vote  is 
had,  subject  only  to  a  possible  interruption  at  the  end  of  sixty 
minutes,  to  which  I  will  refer  hereafter.  But  even  if  inter- 
rupted its  consideration  is  continued  thereafter,  when  busi- 
ness of  that  character  is  in  order,  until  it  is  finally  disposed  of. 

3.  In  addition  to  public  bills  such  as  I  have  enumerated, 
some  carrying  an  appropriation  and  others  not,  there  is  an- 
other class  of  bills,  the  most  numerous  of  all — private  bills 
providing  for  the  relief  of  private  individuals  or  corporations. 
These  have  a  calendar  of  their  own  called  the  private  calen- 
dar, and  are  in  order  on  every  Friday  of  each  week.     They 
are,  generally  speaking,  bills  from  the  Committee  on  Claims, 
from  the  Committee  on  War  Claims  and  from  the  Committee 
on  Pensions.     As  to  these  bills  the   Speaker  has  no  inde- 
pendent right  of  recognition.     When  addressed  by  the  chair- 
man of  the  appropriate  committee  on  a  Friday  he  must  rec- 
ognize him,  and  unless  the  House  declines  to  consider  these 
bills  the  Speaker  must  leave  the  chair  and  nominate  a  member 
to  preside  in  his  place.     In  the  last  Congress  there  were  re- 
ported 6,834  private  bills,  6,624  were  passed,  leaving  210  un- 
disposed of. 

There  is  another  class  of  bills  that,  like  private  bills,  have 
a  day  of  their  own  under  the  rules,  viz.,  District  of  Columbia 
bills.  As  is  well  known,  there  is  no  right  of  suffrage  in  the 
District  of  Columbia,  and  the  Senate  and  House  act  as  its 
Select  and  Common  Councils.  District  of  Columbia  bills  are 
in  order  on  two  Mondays  of  every  month.  As  to  these  bills, 
again  the  Speaker  has  no  alternative  but  to  recognize  the 
Chairman  of  the  District  Committee  when,  on  his  allotted  day, 
he  calls  up  his  business. 

4.  A  fourth  class  of  bills  provide  for  various  matters  of 
public  concern  and  are  such  as  involve  a  charge  upon  the 
Treasury.     These  go  to  the  Union  Calendar  and  when  consid- 
ered must  be  considered  in  Committee  of  the  Whole.     At  the 
end  of  the  morning  hour   (sixty  minutes)  a  motion  may  be 
made  to  go  into  Committee  of  the  Whole  for  the  consideration 


142  READINGS  IN  CIVIL  GOVERNMENT 

of  bills  on  the  Union  Calendar  or  for  the  consideration  of  some 
particular  bill  thereon.  This  motion  the  Speaker  is  bound  to 
entertain. 

Then  a  large  part  of  the  business  of  the  House  is  done 
wholly  outside  of  the  rules  by  unanimous  consent.  Some 
gentleman,  for  instance,  arises  in  the  House  and,  being  rec- 
ognized by  the  Speaker,  asks  '  *  unanimous  consent  for  the  pres- 
ent consideration  of  the  following  bill."  Unless  objection  is 
made  the  bill  is  considered  and  voted  on.  It  is  in  connection 
with  this  practice  and  because  of  it  that  autocratic  power  is 
without  any  reason  ascribed  to  the  Speaker.  But  the  rules 
have  nothing  at  all  to  do  with  this.  The  applicant  for  rec- 
ognition asks  that  all  rules  be  set  aside.  To  this  any  member 
of  the  House  may  object.  Why  should  complaint  be  made 
if  the  Speaker  exercises  his  right  of  objection  by  refusing 
to  recognize  an  applicant  for  recognition  in  any  particular 
case?  Because  he  is  Speaker  he  is  no  less  a  member  of  the 
House ;  no  less  a  Representative  of  his  Congressional  District. 
If  he  were  on  the  floor  he  could  interpose  an  objection  to  any 
request  for  unanimous  consent.  Should  he  be  less  able  to  in- 
terpose that  objection  because  he  is  in  the  chair?  Certainly 
not.  That  the  Speaker's  power  in  this  regard  is  only  in  the 
last  analysis,  that  of  a  member  may  easily  be  illustrated. 
During  the  latter  part  of  the  Fifty-fourth  Congress,  when  Mr. 
Reed  was  Speaker,  there  was  a  member  from  Nebraska  named 
Kem  who  announced  that  he  would  object  to  any  considera- 
tion of  bills  by  unanimous  consent.  After  the  announcement, 
on  the  first  day,  the  Speaker's  room  was  crowded,  as  usual, 
with  applicants  for  recognition.  Mr.  Reed  promised  to  do 
the  best  he  could,  but  recalled  to  his  applicants  Kern's  threat 
to  object.  Still  members  persisted,  one  of  them  was  rec- 
ognized, and  Kem  objected.  The  next  day  the  throng  at  the 
Speaker's  room  was  not  so  great,  but  still  of  large  propor- 
tions. Members  had  faith  that  Kem  would  not  persist.  Again 
Mr.  Reed  promised  to  do  his  best ;  again  recognition  was  had 
and  again  Kem  objected.  On  the  third  day  the  Speaker's 
room  was  deserted,  while  an  anxious  throng  surrounded  the 


THE  HOUSE  OF  REPRESENTATIVES          143 

desk  of  Mr.  Kern,  and  from  that  time  on,  Kem  being  per- 
sistent, the  Speaker  had  peace ;  Mr.  Kem  was  the  autocrat,  and 
the  business  of  the  House  proceeded  under  the  regular  order. 

There  is  no  doubt  that  a  great  many  measures  of  question- 
able character  are  passed  by  unanimous  consent.  Members 
cannot  keep  the  run  of  all  bills  reported  and  are  loth  to 
object,  both  because  ignorant  of  the  merits  of  the  particular 
measure  proposed  and  because  they  may  have  measures  of 
their  own  to  be  considered  and  they  fear  a  reciprocity  of  ob- 
jection. In  a  majority  of  cases  the  only  real  intelligent  ob- 
jection made  to  measure  proposed  for  unanimous  consent  is 
that  made  by  the  Speaker,  who  has  had  opportunity  to  ex- 
amine, as  was  his  duty,  the  bill.  On  two  Mondays  in  every 
month  and  during  the  last  six  days  of  a  session  a  motion  is  in 
order  to  suspend  the  rules  and  pass  bills,  which  requires  for 
its  adoption  a  two-thirds  vote  of  a  quorum.  The  object  of 
this  rule,  of  course,  is  to  expedite  business  by  getting  rid  of 
bills  to  which  two-thirds  of  the  House  are  agreed.  But  the 
demands  for  recognition  to  move  to  suspend  the  rules  are  so 
far  in  excess  of  any  possible  power  of  grant  upon  the 
Speaker's  part  that  he  is  confronted  by  the  embarrassing  ne- 
cessity of  making  a  choice.  There  is  no  doubt  that  he  per- 
forms his  unpleasant  duty  with  due  regard  to  his  obligation 
to  the  public  service. 

It  is  manifest  that  even  under  the  methods  provided  by 
the  rules  for  the  consideration  of  all  classes  of  business  there 
must  necessarily  be  measures  of  great  public  importance  that, 
for  one  reason  or  another,  cannot  be  reached  in  the  regular 
order  of  business.  These  are  provided  for  by  special  orders 
reported  by  the  Committee  on  Rules,  which  consists  of  the 
Speaker,  two  members  from  the  majority  and  two  from  the 
minority.  Like  the  rules  themselves,  the  Committee  on  Rules 
is  made  the  subject  of  much  unjust  criticism.  Autocratic 
power  is  ascribed  to  it.  But  it  must  be  recognized  first  that 
the  existence  of  such  a  body  is  a  necessity,  and  second,  that 
the  only  power  it  exercises  is  the  power  of  the  House.  The 
Committee  on  Rules  does  not  dictate,  it  simply  suggests.  Its 


144          HEADINGS  IN  CIVIL  GOVERNMENT 

report  is  of  no  consequence  until  it  has  been  adopted  by  a  ma- 
jority. The  fact  that  the  committee's  reports  are  uniformly 
adopted,  so  far  from  being  any  evidence  of  undue  authority 
or  power  on  the  part  of  the  committee,  is  evidence  of  the 
discretion  of  the  committee  in  recognizing  and  making  possi- 
ble what  the  House  wants  to  do.  The  real  temper  of  the 
House  upon  any  question  at  any  given  time,  it  may  be  as- 
sumed, is  better  known  by  the  Committee  on  Rules  than  by 
any  one  else.  The  committee,  so  far  from  being  the  master,  is 
the  servant  of  the  House.  Of  the  7,423  bills  considered  last 
year,  only  24  were  brought  forward  by  the  Committee  on 
Rules.  .  .  . 

Early  in  our  history  unlimited  debate  was  resorted  to  to 
prevent  legislative  action,  and  the  result  was  the  adoption  of 
the  previous  question  in  the  House.  According  to  Mr.  Cal- 
houn  it  was  adopted  ' '  in  consequence  of  the  abuse  of  the  right 
of  debate  by  Mr.  Gardenier,  of  New  York,  remarkable  for  his 
capacity  for  making  long  speeches.  He  could  keep  the  floor 
for  days."  But  Mr.  Gardenier  was  only  a  type,  and  the 
adoption  of  the  previous  question  marks  the  first  step  in  our 
Congressional  history  taken  by  the  majority  toward  securing 
its  right  to  rule.  The  next  step  was  the  adoption  of  the  hour 
rule,  pursuant  to  which  a  member  of  the  House  is  confined  to 
the  use  of  one  hour  in  debate. 

With  each  decennial  apportionment  the  House  of  Repre- 
sentatives increases  in  numbers.  As  the  numbers  increase  the 
importance  of  the  individual  member  decreases  and  the  influ- 
ence of  a  few  increases.  What  the  remedy  for  this  growing 
evil  is  I  do  not  undertake  to  predict  or  what  new  or  modified 
rules  may  become  necessary.  But  under  present  conditions 
the  rules  of  the  House  of  Representatives  are  as  efficient  as 
present  wisdom  and  past  experience  have  been  able  to  devise, 
"to  subserve  the  will  of  the  Assembly  rather  than  to  restrain 
it,  to  facilitate  and  not  to  obstruct  the  expression  of  its  de- 
liberate sense." 


THE  HOUSE  OF  REPKE SENT ATI  VES    145 


31.   THE  PUBLIC  AND  THE  CONGRESSIONAL  COMMITTEE. 

There  are  now  more  than  sixty  standing  committees  in  the  House 
of  Representatives.  Mr.  Bryce  in  his  American  Commonwealth 
makes  the  following  points  in  criticism  of  the  committee  system: — 
It  destroys  the  unity  of  the  House  as  a  legislative  body;  it  cramps 
debate;  it  lessens  the  harmony  of  legislation;  it  reduces  responsibil- 
ity; it  throws  power  into  the  hands  of  the  chairmen  of  the  leading 
committees ;  and  it  gives  facilities  for  the  exercise  of  underhand  and 
even  corrupt  influence.  Referring  to  the  last  item,  Mr.  L.  G.  McCon- 
achie  in  his  book  on  Congressional  Committees  shows  how  the 
committees  perform  their  work  and  what  influences  lessen  the  op- 
portunities for  corruption : 

A  number  of  forces  have  counted  against  secrecy,  or  worked 
for  larger  and  larger  publicity.  The  lobbyist  has  not  always 
been  sure  of  his  man;  now  and  then  the  Eepresentative  has 
exposed  him  in  open  House ;  and  to  the  heavy  penalties  of  the 
law ;  beginning  with  such  a  case  in  1795,  an  attempt  to  bribe 
the  chairman  of  a  Committee  on  Land  Offices  with  shares  of 
western  lands,  these  bright  examples  of  legislative  esprit  de 
corps  have  had  occasional  manifestation.  The  earliest  form 
of  publicity  for  committee  proceedings  came,  both  in  England 
and  America,  through  the  printing  of  their  reports.  From 
the  beginning  this  practice  has  obtained  in  the  House  more 
and  more  fully,  and  journalists  continually  send  to  the  great 
newspapers  notices  of  such  reports  as  they  think  will  be  of 
interest.  All  reports  of  committees  of  whatever  description, 
including  those  of  minorities,  must  be  printed.  A  recent 
amendment  of  the  rules  corrects,  to  a  large  extent,  abuses 
which  had  grown  up  in  connection  with  conference  reports,  by 
providing  that  they  shall  be  detailed  and  explicit  as  to  changes 
in  bills  agreed  upon  by  the  managers.  Each  Congressman  is 
entitled  to  one  copy  of  every  printed  document.  Committee 
sessions  are  always  open  to  members  of  the  House.  The  more 
important  committees  have  become  so  large  that  opportunities 
for  cabal  are  much  lessened.  With  the  reporter  going  the 
rounds  for  interviews,  with  a  diversity  of  interests  represented 
by  committeemen  from  many  States,  with  a  minority  on  the 


146  READINGS  IN  CIVIL  GOVERNMENT 

watch,  and  quick  to  report  to  the  House  and  to  the  public, 
with  the  gossipy  confidences  which  pass  among  public  men, 
and  the  easy  evasions  of  that  antiquated  precedent  which 
forbids  any  mention  of  committee  proceedings  in  House  de- 
bates, with  the  filibuster  whose  athletics  have  sometimes 
called  the  attention  of  the  country  to  iniquitous  measures — 
publicity  has  generally  got  in  some  degree  its  due,  though 
often  too  late. 

Tendencies  past  and  present  point  to  the  desirability  and— 
perhaps  it  is  not  too  strong  an  inference — to  the  inevitable- 
ness  of  a  full  publicity  for  committee  work.  The  committee 
hearing  is  the  most  hopeful  sign.  No  feature  of  Congres- 
sional legislation  is  more  interesting.  It  is  a  happy  device 
for  gleaning  information  and  gauging  public  opinion.  It  is 
growing  in  favor,  and  perfecting  its  development.  A  com- 
mittee at  the  outset  of  its  session's  work  will  schedule  fifteen 
or  twenty  days  for  presentation  of  arguments  upon  one  of  its 
prominent  measures  by  outsiders.  This  testimony  is  caught 
by  the  stenographer's  pencil,  and  presently  appears  u 
printed  and  indexed  booklet,  which  serves  as  the  principal  text 
for  the  committee's  action.  Before  the  daily  meeting  of  the 
House,  from  10:30  in  the  morning  until  noon,  is  a  usual 
period  for  the  hearing.  The  first  comers  at  such  a  meeting 
are  naturally  those  who  expect  to  present  their  views  before 
the  committee.  They  are  strangers  in  the  city  and  the  Capi- 
tol, and  come,  it  may  be,  from  distant  parts  of  the  Union. 
They  find  themselves  in  a  large,  square  room  with  frescoed 
dome,  from  which  the  sunlight  streams  downward  over  a 
swinging  chandelier.  Shelves  of  books  and  maps  mounted  for 
convenient  reference  line  the  walls.  There  are  easy  sofas,  a 
home-like  fireplace  surmounted  by  a  fine  mirror,  and  other 
objects  of  convenience  or  comfort.  Diagonally  across  the 
room  extends  the  great,  solid  committee  table,  bordered  by 
ample  cushioned  chairs,  and  laden  with  thick  files  of  the  bills 
which  await  action.  A  hum  of  conversation  hushes  when  the 
chairman,  the  first  committeeman  to  arrive,  takes  his  seat  at 
the  head  of  the  table.  The  visitors  are  introduced  by  their 


THE  HOUSE  OF  REPEESENTATIYES          147 

home  Congressman,  although  he  is  not  a  member  of  the  com- 
mittee. Proceedings  begin  with  a  few  of  the  committeemen 
present,  and  others  drop  in  one  by  one,  the  minority  mem- 
bers being  the  greatest  laggards.  Upon  the  Congressman  who 
has  introduced  his  constituents  the  chair  will  probably  be- 
stow the  honor  of  managing  the  floor,  including  the  order  of 
the  programme,  the  introduction  of  speakers,  and  the  equitable 
division  among  them  of  the  one  hour  and  a  half  for  'debate. 
Each  advocate  or  witness  stands  in  turn  at  the  foot  of  the 
table  facing  the  chairman,  and  strives  earnestly  to  impress 
his  views  upon  the  auditory,  subject  all  the  while  to  a  fire  of 
cross-questioning  from  those  who  choose  to  interrupt.  An 
important  general  appropriation  or  tariff  bill  may  be  the 
theme.  Perhaps  these  invaders  of  the  Congressional  halls  rep- 
resent rival  towns  in  a  fast  developing  and  somewhat  lawless 
mountain  region  of  West  Virginia,  where  the  establishment  of 
a  new  Federal  court  has  become  necessary;  or  they  are  the 
spokesmen  of  contending  religious  sects,  who  urge  or  oppose 
the  introduction  of  the  name  of  Deity  into  the  Constitution 
of  the  United  States;  or  they  stand  for  two  great  clashing 
industries,  filled  cheese  and  oleomargarine  against  butter  and 
full-cream  cheese,  the  grievance  of  the  quiet,  self-respecting 
American  cow  against  the  pushing,  unscrupulous  American 
porker,  the  conflict  of  Vermont  meadows  with  corn  and  cotton 
fields  of  Illinois  and  Georgia.  It  is  a  revelation  to  the  onlooker, 
an  indispensable  key  to  the  puzzles  of  that  vast  onward  sweep 
of  legislation  in  the  full  arena  of  the  House.  Here  he  sees 
the  headsprings  of  law.  Here  is  the  despised  secret  lobby 
hopefully  transforming  into  the  open  and  fair  voice  of  all 
who  desire  to  be  heard.  From  every  class  and  occupation 
the  influences  come.  Ministers  of  the  gospel  and  labor  dele- 
gates touch  elbows.  The  physician  and  the  expert  of  science 
contribute  their  testimony.  Clerks  and  other  officials  of  long 
experience  in  government  answer  the  call  for  information. 
The  judge,  the  old  soldier,  the  merchant,  come  burdened  with 
the  letters,  the  affidavits,  and  the  carefully  prepared  addresses 
of  distant  fellow-citizens  and  comrades.  There  are  readings 


148  READINGS  IN  CIVIL  GOVERNMENT 

of  newspaper  articles,  echoes  from  numerous  conventions,  in- 
dorsements of  labor  organizations,  amendments  for  pending 
bills  suggested  by  produce  exchanges,  even  voices  from  for- 
eign lands.  It  is  the  point  of  mutual  touch  between  two 
fully  developed  standing  committees,  the  one  maintained  by 
some  voluntary  association  of  the  people  for  the  purpose  of 
influencing  legislation,  the  other  established  by  Congress  to 
ascertain  and  supply  the  needs  of  society  in  the  way  of  new 
laws.  While  the  private  advocate  is  delivering  before  the 
committee  his  careful  and  labored  argument,  the  legislator 
leans  forward  with  eyes  and  ears  all  eager  attention;  for 
afterward,  when  the  bill  comes  up  in  the  House,  he  will  re- 
hearse the  committee  hearing  in  a  broader,  somewhat  drama- 
tized way. 


32.   AN  APPORTIONMENT  BILL. 

The  Constitution  provides  that  Representatives  shall  be  appor- 
tioned according  to  population  and  that  a  census  shall  ba  taken  <  • 
ten  years  for  that  purpose.     The  following  Act  was  passed  in  ap- 
portioning Representatives  on  the  basis  of  the  census  taken  in  1910 : 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
in  Congress  assembled.  That,  after  the  third  day  of  March, 
nineteen  hundred  and  thirteen,  the  House  of  Representatives 
shall  be  composed  of  four  hundred  and  thirty-three  members, 
to  be  apportioned  among  the  several  States  as  follows : 

Alabama,  ten;  Arkansas,  seven.     .     .     . 

Sec.  2.  That  if  the  Territories  of  Arizona  and  New  Mexico 
shall  become  States  in  the  Union  before  the  apportionment 
of  Representatives  under  the  next  decennial  census  they  shall 
have  one  Representative  each — which  Representative  shall  be 
in  addition  to  the  number  four  hundred  and  thirty-three. 

Sec.  3.  That  in  each  State  entitled  under  this  apportion- 
ment to  more  than  one  Representative,  the  Representatives 
to  the  Sixty-third  and  each  subsequent  Congress  shall  be 
elected  by  districts  composed  of  a  contiguous  and  compact 


THE  HOUSE  OF  REPRESENTATIVES          149 

territory  and  containing  as  nearly  as  practicable  an  equal 
number  of  inhabitants.  The  said  districts  shall  be  equal  to 
the  number  of  Representatives  to  which  such  State  may  be  en- 
titled in  Congress,  no  district  electing  more  than  one  Repre- 
sentative. 

Sec.  4.  That  in  case  of  an  increase  in  the  number  of  Repre- 
sentatives in  any  State  under  this  apportionment  such  addi- 
tional Representative  or  Representatives  shall  be  elected  by 
the  State  at  large  and  the  other  Representatives  by  the  dis- 
tricts now  prescribed  by  law  until  such  State  shall  be  redis- 
tricted  in  the  manner  provided  by  the  laws  thereof  and  in 
accordance  with  the  rules  enumerated  in  section  three  of  this 
Act;  and  if  there  be  no  change  in  the  number  of  Representa- 
tives from  a  State,  the  Representatives  thereof  shall  be  elected 
from  the  districts  now  prescribed  by  law  until  such  State  shall 
be  redistricted  as  herein  prescribed. 

Sec.  5.  That  candidates  for  Representative  or  Representa- 
tives to  be  elected  at  large  in  any  State  shall  be  nominated 
in  the  same  manner  as  candidates  for  governor,  unless  other- 
wise provided  by  the  laws  of  such  State. 

Sec.  6.  That  all  Acts  and  parts  of  Acts  inconsistent  with 
this  Act  are  hereby  repealed. 

33.   THE    HOUSE   OP    REPRESENTATIVES    AND    THE    HOUSE   OF 
COMMONS. 

In  the  following  article  Mr.  H.  A.  Herbert,  formerly  Secretary 
of  the  Navy,  points  out  the  differences  in  procedure  between  the 
House  of  Representatives  and  its  English  prototype  the  House  of 
Commons:  [1894]. 

The  reasons  why  the  debates  in  the  American  House  are  not 
as  fully  reported  and  as  keenly  followed  by  the  public  as  those 
of  the  House  of  Commons,  and-  why  the  party  in  power  in 
the  House  of  Representatives  has  not  and  never  can  have  any 
great  leader  who  represents  the  government  in  every  measure 
and  upon  whom  all  eyes  are  centred  as  they  now  are  upon 


150  READINGS  IN  CIVIL  GOVERNMENT 

Gladstone  or  as  they  have  been  upon  Disraeli  or  Charles  James 
Fox  or  William  Pitt,  are  fundamental.  "The  Government," 
as  in  England  they  call  the  Ministry,  with  the  Prime  Minis- 
ter as  chief,  sits  in  the  House  of  Commons;  it  matures  and 
offers  all  important  bills,  and  upon  the  success  or  failure  of 
these  it  must  stand  or  fall.  Upon  any  signal  defeat  it  goes 
out  of  power,  and  so  every  debate  in  the  House  of  Commons  is 
watched  with  somewhat  of  that  lively  interest  with  which,  in 
America,  we  follow  the  progress  of  a  presidential  election. 
With  us  the  defeat  of  a  particular  bill  means  simply  the  de- 
feat of  that  measure.  The  consequences,  whatever  they  may 
be  to  the  party  in  power,  are  not  immediate.  The  people  have 
selected  their  officials  for  fixed  terms.  They  have  reserved  to 
themselves  the  power,  at  the  next  elections,  to  vote  upon  the 
whole  record  made  by  a  party,  "confidence7'  or  "want  of  con- 
fidence "  and  they  are  not  watching  to  see  what  new  "  govern- 
ment "  Congress  is  to  give  them.  The  Executive  and  Con- 
gress are,  under  our  Constitution,  so  distinct  and  separate 
that  there  is  nothing  to  bind  them  together  in  the  maintenance 
of  a  common  policy  except  allegiance  to  a  common  party. 
The  power  of  these  ties  is,  or  ought  to  be,  great,  as  there  is 
not  much  hope  for  the  future  success  of  a  party  if  its  legis- 
lators and  its  executive  are  at  odds  with  each  other;  but  this 
is  all  there  is  of  it. 

In  the  English  House  of  Commons  executive  officers  are 
present  to  answer  questions,  to  explain  their  policies  and  to 
defend  them.  With  us,  as  no  executive  officer  can  sit  or  vote 
or  speak,  either  in  the  Senate  or  the  House,  the  President 
must  rely  upon  his  party  friends  to  defend  his  acts.  From 
the  nature  of  things  he  cannot  have  any  one  man,  either  in  the 
House  or  the  Senate,  to  defend  him  at  all  times  and  on  all 
questions.  Attacks  upon  the  administration  are  made  without 
warning.  The  constant  effort  is  to  surprise.  If  the  assault 
is  upon  the  dealings  of  the  government  with  the  Indians,  as 
a  rule,  members  of  the  Committee  on  Indian  Affairs,  who  have 
the  necessary  information,  come  to  his  rescue ;  if  on  the  man- 
agement of  the  navy,  the  Naval  Committee,  or,  on  matters  re- 


THE  HOUSE  OF  REPRESENTATIVES          151 

lating  to  the  army,  the  Military  Committee  must  defend  him. 
In  England  the  Ministry  sitting  in  the  House  of  Commons, 
fully  equipped  to  explain  their  policies,  and  having  upon  their 
shoulders  the  affirmative  of  every  great  issue,  are  represented 
by  the  Premier  or  some  other  of  their  number.  Under  such 
a  system  a  great  government  leader  on  the  floor  of  debate  is 
not  only  possible,  but  he  is  a  necessity;  but  with  us  such  a 
leader  cannot  exist.  No  single  member  can  be  like  an  Eng- 
lish minister,  caligatus  omnia.  Presidents  have  generally  had 
special  friends  on  the  floor  of  the  House,  and  quite  often  some 
prominent  member  has  been  known  as  the  mouthpiece  of  the 
Executive,  speaking  his  sentiments,  now  and  then,  with  more 
or  less  of  authority ;  but  a  leader  in  the  English  sense,  such  a 
leader  as  our  public  prints  and  even  our  public  men  are  often 
found  deploring  the  need  of,  the  parliamentary  history  of  our 
country  does  not  mention.  Henry  Clay  was  a  great  leader  on 
the  floor  of  the  House,  but  he  was  not  a  government  mouth- 
piece. Thad  Stevens  was  a  leader  in  the  stirring  times  of  the 
Civil  War,  and  still  more  during  the  days  of  reconstruction, 
but  he  only  stood  for  a  leader  on  one  idea  at  a  time — on  the 
prosecution  of  the  war  while  it  lasted,  and  on  granting  suf- 
frage to  the  negro  in  the  days  of  reconstruction.  He  was 
never  known  during  the  war  as  the  special  representative  of 
the  President,  and  in  his  reconstruction  measures  he  boldly 
trampled  under  foot  the  policy  that  Mr.  Lincoln  had  formu- 
lated and  President  Johnson  was  endeavoring  to  execute. 

A  minority  leader,  however,  in  the  House  of  Representa- 
tives is  possible  within  limits.  It  is  not  difficult  to  unite 
members  who  are  animated  by  a  common  desire  to  turn  a 
party  out  of  power — and  we  need  not  go  far  to  seek  in  our 
history  for  opposition  leaders.  Mr.  Randall,  although  he  was 
out  of  sympathy  with  the  majority  of  his  party  on  the  great 
question  of  the  tariff,  was  nevertheless,  for  a  time,  the  ac- 
knowledged leader  of  the  Democrats  in  opposition;  and  Mr. 
Reed  was  the  undoubted  leader  of  the  Republicans  from  1885 
to  1889.  But  except  the  Speaker,  Mr.  Cleveland  during  his 
administration  had  no  friend  on  the  floor  upon  whom  he  could 


152  READINGS  IN  CIVIL  GOVERNMENT 

look  as  leader  of  the  House;  and  Mr.  Harrison  certainly  was 
in  no  better  plight. 

Bills,  before  they  are  put  upon  their  passage,  especially 
those  that  deal  with  the  great  questions  of  taxation  and  ap- 
propriations, must  be  formulated  after  careful  study  and 
preparation.  This  work  "the  Government"  does  for  the 
House  of  Commons,  most  of  it  during  the  recess  of  Parliament, 
and  this  body  can  therefore  get  itself  down  to  the  work  of 
legislating  almost  immediately  after  it  comes  together.  The 
House  of  Representatives  must  formulate  its  own  bills,  and 
this  it  can  only  do  through  committees.  When  Congress  con- 
venes and  the  House  elects  its  speaker,  he  sets  himself  to  the 
task  of  dividing  it  into  fifty-six  standing  and  select  commit- 
tees. This  requires  time.  When  committees  are  organized, 
they  must  perfect  and  report  upon  the  bills  or  subjects  re- 
ferred to  them,  and  this  requires  still  more  time.  Govern- 
ment reports  are  to  be  read,  witnesses  examined,  figures 
studied  and  compared,  information  to  be  acquired  from  the 
departments,  and  then  the  form  and  nature  of  the  reports  and 
bills  are  to  be  decided  upon.  As  a  rule  to  which  there  are 
few  exceptions,  the  members  of  the  great  committees  labor 
with  unremitting  zeal  and  fidelity.  Duty  impels  them,  and 
they  know,  too,  the  temper  of  the  public.  If,  for  example,  a 
majority  has  been  elected  to  increase  subsidies,  every  subsidy- 
seeker  knows  just  what  he  wants  and  he  fails  to  see  why  Con- 
gress does  not  give  it  and  go  home.  If  on  the  other  hand  the 
majority  chosen  favors  a  reduction  of  taxation,  one  portion  of 
the  public  is  importunate  for  immediate  relief,  while  the  other 
is  shouting  through  the  press  that  Congress  is  depressing  busi- 
ness by  "tinkering  with  the  tariff/'  Nobody  understands 
this  impatience  better  than  a  member  of  the  House,  who  or- 
dinarily has,  in  the  necessity  of  looking  after  his  own  interests, 
business  and  political,  at  home,  still  another  incentive  to 
haste.  There  are  several  well-known  instances  of  members 
breaking  down,  some  of  them  dying  outright  from  overwork, 
as  did  Haskell  of  Kansas,  Burnes  of  Missouri,  and  probably 
Randall  of  Pennsylvania;  but  the  work  of  such  men  is  done 


THE  HOUSE  OF  REPRESENTATIVES          153 

in  the  privacy  of  the  committee-room,  and  while  it  is  going  on 
the  public  is  usually  clamoring  about  the  delays  in  legisla- 
tion. 

Inasmuch  as  in  England  the  Ministry  prepares  every  im- 
portant bill,  the  claim  made  by  Englishmen  may  be  true  that 
the  laws  passed  at  any  one  session  are  more  harmonious  and 
consistent  than  they  can  be  without  any  common  supervision. 
In  the  earlier  days  of  the  republic,  when  the  legislation  of 
Congress  was  confined  within  narrow  limits,  our  own  laws  had, 
in  a  great  measure,  such  supervision.  One  committee,  the 
Ways  and  Means,  had  jurisdiction  over  all  questions  of 
finance,  taxation,  and  appropriation,  but  now  no  single  com- 
mittee could  possibly  perform  all  this  work.  The  interests 
embraced  in  the  legislation  of  Congress  have  multiplied  even 
more  rapidly  than  population,  and  the  jurisdiction  originally 
exercised  by  the  Ways  and  Means  Committee  has  been  dis- 
tributed among  many  other  committees. 

In  England  the  majority  represented  by  the  Ministry 
ask  no  counsel  of  the  minority  in  framing  bills.  The  mi- 
nority never  see  the  bills  until  reported  and  ready  for  the 
action  of  the  House  of  Commons.  With  us  the  minority  is 
fairly  represented  on  every  committee.  The  Speaker,  parti- 
san though  he  be,  is  expected  to  act  with  the  utmost  impar- 
tiality in  apportioning  the  opposition  to  all  the  greater  stand- 
ing committees,  and,  as  a  matter  of  fact,  having  no  friends 
among  them  to  whom  he  is  indebted  for  his  seat,  he  is  gener- 
ally more  just  to  the  opposition  in  the  makeup  of  committees 
than  he  is  to  his  own  party.  One  single  case  is  remembered 
of  a  speaker  who  was  said  and  believed  to  have  told  his 
friends  that  he  had  put  the  opposition  where  they  could  do  the 
least  possible  harm.  That  Speaker  was  a  failure;  this  treat- 
ment of  his  political  opponents  was  his  first  stumbling- 
block.  .  .  . 

It  is  not  intended  in  this  article  to  assert  that  the  com- 
mittee system  is  perfect,  but  only  to  maintain  that  under  our 
form  of  government  the  House  of  Representatives  must  neces- 
sarily have  committees  of  its  own  members  to  prepare  legis- 


154  READINGS  IN  CIVIL  GOVERNMENT 

lation,  and  that  the  system  at  present  existing  is  not  subject 
to  the  grave  objections  urged  against  it.  It  is  true  that  the 
members  may  trust  committees  too  implicitly,  but  the  same 
objection  would  seem  to  lie  against  a  system  of  parliamentary 
government  where  the  ministry  must  be  followed  implicitly  in 
every  important  measure,  the  penalty  of  a  defeat  of  the  gov- 
ernment, in  every  such  case,  being  the  immediate  loss  of  every 
seat  and  another  appeal  to  elections. 

In  one  respect  the  House  of  Commons  always  appears  to 
advantage  when  compared  with  the  House  of  Representatives. 
The  spectator,  looking  in  upon  the  latter,  sees  a  desk  before 
each  member,  and  unless  upon  occasions  of  extraordinary 
interest  he  finds  perhaps  a  majority  engaged  in  writing 
letters,  reading  newspapers,  clapping  for  pages,  etc.,  and  he 
is  quite  likely  to  go  away  with  the  impression  that  Representa- 
tives generally  do  not  know  or  care  what  is  being  done, 
whereas  in  the  House  of  Commons  there  are  no  desks,  no 
reading,  or  writing,  or  clapping  for  pages — only  those  are 
present  who  wish  to  listen.  The  advantage,  however,  is  not 
so  great  as  it  appears  to  be.  Under  both  systems  members 
who  have  not  heard  the  debate  are  on  hand,  when  a  division 
comes,  to  vote  with  their  parties,  and  certainly  those  who  have 
been  brought  by  a  "whip"  into  the  House  of  Commons  are 
no  better  prepared  to  vote  intelligently  than  those  who  in  our 
House  have  been  sitting  by,  listening  perhaps  to  the  debate 
by  snatches.  The  truth  is  not  to  be  ignored  that,  whatever 
be  the  system  and  however  large  may  be  the  legislative  body, 
a  few  men  will  control  the  business.  In  the  House  of  Com- 
mons one  committee — the  Ministry — controls  everything. 
With  us  the  several  great  committees  control  in  turn. 

The  American  practice  of  having  desks  and  permitting 
members  to  read  and  write  was  defensible  before  Representa- 
tives voted  themselves  clerks,  as  they  very  properly  did  in 
the  last  Congress,  as  it  was  impossible  for  them  to  do  their 
necessary  correspondence  without  utilizing  the  hours  of  the 
session.  Now  it  is  hoped  that  in  the  near  future  desks  will 
be  removed,  as  nothing  detracts  so  much  from  the  respect 


THE  HOUSE  OF  REPRESENTATIVES          155 

the  public  ought  to  entertain  for  the  House  as  the  ragged 
appearance  it  ordinarily  presents  to  the  visitor. 

ADDITIONAL  READINGS 

1 — Recent  Developments  in  Congressional  Procedure,  Reinsch, 
P.,  American  Legislatures  and  Legislative  Methods,  42- 
70. 

2 — The  House  at  Work,  Bryce,  J.,  American  Commonwealth,  I, 
142-53. 

3 — Impeachments,  Hinsdale,  B.  A.,  The  American  Govern- 
ment, 170-5. 

4 — Parliamentary  Obstruction  in  the  United  States,  Lodge, 
H.  €.,  Nineteenth  Century,  XXIX,  423-8. 

5 — Making  Laws  at  Washington,  Nelson,  H.  L.,  Century  Maga- 
zine, XLII,  169-84. 

6 — The  Speaker  and  His  Power,  Taylor,  H.,  North  American 
Review,  CLXXXVIII,  495-503. 

7 — Speaker  as  Premier,  Hart,  A.  B.,  Practical  Essays  in  Amer- 
ican Government,  1-20. 


CHAPTER  VIII 
THE  SENATE 

34.  POPULAR  ELECTION  OF  SENATORS. 

(a)  The  Constitution  originally  stipulated  that  Senators  were  to 
be  chosen  by  the  State  Legislatures.  This  mode  of  election  was  not 
an  unqualified  success.  Concerning  it  Mr.  George  H.  Haynes,  in  his 
book  on  The  Election  of  Senators  written  prior  to  the  adoption  of 
the  amendment  providing  for  the  election  of  Senators  by  the  people, 
offered  the  following  criticisms  and  suggestions :  * 

How  senators  shall  be  chosen,  has  become  a  question  which 
the  people  of  the  United  States  must  frankly  face.  For, 
that  the  phrases  of  the  Constitution  have  long  since  ceased 
accurately  to  describe,  still  less  to  determine,  the  process  of 
their  election,  no  one  can  doubt  who  has  noted  how  senators 
in  recent  years  have  reached  their  office,  or  who  has  grasped 
the  import  of  the  movement,  which,  during  the  past  thirty 
years,  has  taken  on  different  forms,  has  employed  different 
means  and  methods,  but  has  ever  kept  the  same  spirit  and 
aim — a  determination  that  the  Senate  of  the  United  States 
shall  be  made  responsible  to  the  people.  .  .  . 

Meantime,  a  vast  deal  of  ingenuity  has  been  devoted  to 
attempts  to  reach  popular  control  of  senatorial  elections  by 
some  other  route  than  the  amending  of  the  Constitution. 
While  the  form  of  election  by  the  legislature  is  retained,  its 
spirit  has  been  radically  changed.  There  is  not  a  State  in 
the  Union  to-day  where  members  of  the  legislature  proceed 
to  the  election  of  a  senator  with  that  enlightened  independ- 
ence, that  freedom  of  individual  discretion  in  the  choice  from 
which  the  fathers  anticipated  such  beneficent  results.  Everv- 

i  Reprinted  by  special  permission  of  Henry  Holt  and  Company, 

156 


THE  SENATE  157 

where  the  legislators  approach  the  task  under  the  dominance 
of  party,  and  in  every  State  where  one  well-disciplined 
party  is  in  power,  the  result  of  the  election  is  a  certainty 
even  before  the  legislature  convenes.  Not  only  has  party 
spirit  claimed  this  election  for  its  own,  but  the  party's  choice 
for  senator  is  often  made  before  the  members  of  the  legisla- 
ture are  elected,  and  is  obtruded  upon  that  body  by  the  state 
convention.  Already,  in  about  a  third  of  the  States,  either 
under  party  rules,  or  in  accordance  with  the  explicit  pro- 
visions of  state  law,  direct  primaries  name  the  candidates, 
and  wherever  a  strong  party  is  supreme,  this  nomination  is 
tantamount  to  an  election.  Even  in  the  most  conservative 
States,  the  movement  for  the  direct  primary  is  making  dis- 
tinct progress.  In  four  States,  provision  is  made  for  a 
popular  "election,"  carried  out  under  the  supervision  of 
officials,  not  of  the  party,  but  of  the  State;  an  election  as 
complete  in  all  its  details  and  formalities  as  is  that  of  the 
governor,  yet  which  is  as  void  of  legal  power  to  bind  the 
legislature  in  the  real  election  of  senator  as  would  be  the 
resolutions  adopted  by  a  boys'  debating  society. 

What,  then,  is  the  outcome  to  be?  That  depends  not  a 
little  upon  the  temper  and  action  of  the  Senate  itself.  If 
senators  have  foresight  enough  to  discern  the  cloud  while 
it  is  yet  but  the  size  of  a  man's  hand,  the  gathering  tempest 
of  discontent  may  be  averted.  For,  in  comparison  with  a 
rule-ridden  House  that  has  ceased  to  be  a  deliberative  body, 
a  Senate  that  gave  evidence  of  feeling  itself  responsible  to 
public  opinion,  and  of  striving  to  discover  and  serve  the 
country's  broader  interests,  might  so  win  the  people's  confi- 
dence that  agitation  for  change  in  its  mode  of  election  would 
lose  its  force.  But  is  legislative  election  under  present  con- 
ditions calculated  to  yield  a  Senate  capable  of  such  self-re- 
generation? If,  on  the  other  hand,  the  Senate  continues  for 
a  few  years  more  arrogantly  to  refuse  the  people  an  oppor- 
tunity to  pass  upon  the  mode  of  their  election;  if,  mean- 
time, relying  upon  the  impregnable  defense  built  about  their 
office  by  legislative  election,  senators  persist  in  neglecting 


158  READINGS  IN  CIVIL  GOVERNMENT 

or  perverting  measures  of  the  utmost  public  concern,  while 
not  a  few  of  them  are  devoting  their  best  energies  to  the 
protection  of  private  interests;  if  state  legislatures,  heed- 
less of  the  earnest  and  manifold  efforts  made  by  the  people 
to  bring  them  to  a  sense  of  their  high  responsibility  to  the 
State  in  the  selection  of  senators,  persist  in  using  their  free- 
dom of  choice,  not  for  the  selection  of  the  best  man,  but  of 
men  whose  presence  in  the  Senate  is  a  disgrace  to  the  State 
and  a  menace  to  popular  government — then  the  new  century 
will  still  be  young  when  the  people  will  find  themselves  forced 
to  make  choice  between  two  alternatives;  either  they  must 
redouble  their  efforts  to  force  the  new  wine  of  democracy 
into  the  old  bottles  of  the  elective  process  prescribed  by  the 
Constitution,  or,  frankly  casting  aside  that  ancient  mode  of 
election  as  outworn,  for  better,  for  worse,  they  must  take  the 
choice  of  senators  into  their  own  eager,  strong,  but  unskilled 
hands. 

But  the  teaching  of  both  theory  and  experience  is  that 
without  amendment  of  the  Constitution,  genuine  popular 
control  over  senatorial  elections  cannot  be  effectively  realized. 
It  needs  no  repetition  of  such  experiences  as  the  Oregon 
fiasco  of  1903  to  afford  convincing  proof  that  the  indorse- 
ment of  senatorial  candidates  by  state  conventions,  their  nomi- 
nation by  direct  primaries,  even  their  " election"  by  an  over- 
whelming majority  of  the  vote  of  the  people,  may  count 
absolutely  for  naught  in  influencing  the  real  election  at  the 
hands  of  a  legislature  ruled  by  party  bosses,  or  rent  by  fac- 
tions which  this  very  election  has  brought  into  being.  In  the 
very  State  where  popular  control  of  senatorial  elections  is 
most  needed,  the  best  laid  schemes  for  its  realization  have 
proved  futile.  .  .  , 

The  grounds  which  the  framers  of  the  Constitution  ad- 
vanced for  their  belief  that  the  election  of  senators  by  legis- 
latures would  produce  beneficent  effects  upon  the  Senate  as 
a  lawmaking  body  have  for  the  most  part  become  obsolete. 
Legislative  election  in  other  departments  has  passed  entirely 
out  of  vogue  and  out  of  practice.  It  was  not  to  be  thought  of 


THE  SENATE  159 

that  the  framers  of  the  constitution  in  the  latest  great  federal 
state,  the  Australian  Commonwealth,  would  follow  ancient 
American  precedent  in  this  regard.  If  it  is  claimed  that  the 
change  to  popular  election  would  remove  a  great  bulwark 
against  centralization  in  the  organized  resistance  of  the  state 
legislatures,  the  reply  is  that  no  other  influence  has  conduced 
so  directly  to  the  subordination  of  state  and  local  govern- 
ment to  the  national  party  organizations  as  has  this  process 
of  electing  senators,  and  legislatures  thus  dominated  are  lit- 
tle likely  to  impose  sentiments  opposed  to  centralization  upon 
the  senators  of  their  choice.  The  protest  that  under  popu- 
lar elections  the  Senate  would  fail  to  secure  representation 
of  the  States  as  such,  is  academic  and  fallacious.  The  state 
legislature  is  but  the  agent;  the  body  of  voters,  the  princi- 
pal. The  governor  personifies  the  State  in  most  of  its  deal- 
ings with  other  States  and  with  the  national  government;  he 
certainly  is  no  less  the  representative  of  the  State  by  virtue 
of  his  deriving  his  authority  directly  from  the  people  than 
he  would  be  if  he  were  elected  by  the  legislature.  No 
logical  principle  underlies  the  assumption  that  only  election 
by  the  legislature  can  authorize  a  man  to  represent  the  state- 
hood of  Massachusetts,  or  of  New  York,  in  the  Senate  of  the 
United  States. 

As  to  the  improvement  which  popular  election  would  bring 
to  the  quality  of  the  Senate,  it  is  best  not  to  entertain  too 
optimistic  anticipations.  It  cannot  be  denied  that  the  lower- 
ing of  the  tone  in  the  Senate  in  recent  years  is  not  to  be 
attributed  solely  to  the  method  of  election — which  in  form 
has  remained  unchanged — but  to  general  influences  which 
have  lowered  and  commercialized  American  politics  through- 
out the  system.  Popular  elections  would  present  no  insuper- 
able barrier  to  the  demagogue  and  to  the  corruptionist.  In- 
deed, it  is  a  debatable  question,  whether  he  would  not  find 
his  path  easier  and  more  direct  than  at  present.  Moreover, 
the  shortening  of  senatorial  careers — which  the  history  of 
other  elective  offices  shows  would  be  an  almost  inevitable 
consequence  of  popular  election — would  tend  seriously  to  im- 


160  READINGS  IN  CIVIL  GOVERNMENT 

pair  the  Senate's  prestige  and  power.  The  chief  grounds  for 
hope  that  popular  election  would,  nevertheless,  improve  the 
tone  of  the  Senate,  are  three:  (1)  No  candidate  could 
secure  the  election  unless  he  possessed  the  confidence  and 
could  enlist  the  support  of  a  plurality  at  least  of  all  those 
sufficiently  interested  to  take  part  in  a  great  national  elec- 
tion. (2)  In  the  openness  of  the  direct  primary,  and  in  the 
publicity  for  the  weeks  preceding  a  popular  election,  the 
people  would  have  ample  opportunity  for  passing  a  far  more 
correct  judgment  upon  senatorial  candidates,  than  is  possi- 
ble in  the  murky  atmosphere  which  often  surrounds  an  elec- 
tion in  the  legislature.  At  present,  the  case  is  closed  as 
soon  as  a  candidate,  who  may  never  have  been  thought  of 
before,  can  negotiate  a  majority  from  some  few  score  of  leg- 
islators; under  popular  elections  every  candidate's  record 
and  qualifications  would  be  under  discussion  for  weeks  be- 
fore the  election,  and  if  the  popular  verdict  proved  to  be 
not  in  accord  with  the  evidence,  the  blame  could  be  shifted 
by  the  voters  upon  no  one  else.  (3)  Although  the  phrase- 
maker,  the  demagogue,  or  even  the  corruptionist  or  corpora- 
tion tool,  might  capture  a  seat  in  the  Senate,  democracy 
would  learn  valuable  lessons  from  such  betrayals  of  confi- 
dence, and  would  correct  its  mistakes  with  more  promptness 
and  permanence  than  would  a  state  legislature. 

The  decisive  advantages  of  the  change  to  popular  election 
of  senators,  however,  would  be  found  in  its  effects,  not  upon 
the  federal  government,  but  upon  the  individual  States. 
However  plausibly  the  apologist  for  the  present  system  may 
argue  that  this  very  method  of  election  by  legislatures  has 
remained  unchanged  since  the  time  when  it  produced  ideal 
results,  and  that,  therefore,  the  causes  of  the  present  abuses 
must  lie  deeper  than  the  mere  mode  of  election,  he  cannot 
deny  that  our  state  legislatures  have  sunk  to  a  deplorably 
low  level,  and  that  one  of  the  most  potent  causes  of  this  de- 
terioration which  has  unfitted  the  legislatures  for  the  per- 
formance of  this  function,  by  what  may  seem  like  a  paradox, 
has  been  the  very  exercise  of  it.  The  fact  that  this  election 


THE  SENATE  161 

of  an  important  federal  official  is  devolved  upon  the  mem- 
bers of  the  state  legislature  blurs  the  issues  in  the  voter's 
mind,  distorts  his  political  perspective,  makes  him  tolerant 
of  much  inefficient  legislative  service  on  the  part  of  the  man 
who  will  vote  for  his  party's  candidate  for  the  Senate.  To 
the  legislature,  as  a  body,  it  brings  what  is  liable  at  any 
time  to  prove  a  task  as  difficult  and  distracting  as  it  is  in- 
congruous with  normal  legislative  work ;  to  the  State  it  brings 
interruption,  it  may  be  prevention,  of  needed  legislation,  the 
domination  of  all  issues  by  the  national  political  parties  and 
the  tyranny  of  the  boss,  who  almost  inevitably  seeks  to  im- 
pose either  some  tool  or  his  own  venal,  or  at  best,  narrowly 
partisan  self  upon  the  commonwealth,  as  the  "representative 
of  its  statehood"  in  the  United  States  Senate.  To  be  rid  of 
this  would  be  an  achievement  well  worth  the  struggle,  the 
earnest  of  far  greater  progress  in  the  future. 

(b)  The  following  joint  resolution  providing  for  the  election  of 
Senators  by  the  people  was  submitted  to  the  States  by  the  62nd 
Congress  in  1911  and  having  been  ratified  by  three-fourths  of  the 
States  became  part  of  the  Constitution  in  April,  1913: 

RESOLVED  ~by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled  (two- 
thirds  of  each  House  concurring  therein},  That  in  lieu  of  the 
first  paragraph  of  Section  3  of  Article  I  of  the  Constitution 
of  the  United  States,  and  in  lieu  of  so  much  of  paragraph  2 
of  the  same  section  as  relates  to  the  filling  of  vacancies, 
the  following  be  proposed  as  an  amendment  to  the  Constitu- 
tion, which  shall  be  valid  to  all  intents  and  purposes  as  part 
of  the  Constitution  when  ratified  by  the  legislatures  of  three- 
fourths  of  the  States: 

1 1  The  Senate  of  the  United  States  shall  be  composed  of  two 
senators  from  each  State,  elected  by  the  people  thereof,  for 
six  years;  and  each  senator  shall  have  one  vote.  The  elect- 
ors in  each  State  shall  have  the  qualifications  requisite  for 
electors  of  the  most  numerous  branch  of  the  State  legisla- 
tures. 

"When   vacancies   happen  in   the   representation   of   any 


162  READINGS  IN  CIVIL  GOVERNMENT 

State  in  the  Senate,  the  executive  authority  of  such  State 
shall  issue  writs  of  election  to  fill  such  vacancies:  Pro- 
vided, That  the  legislature  of  any  State  may  empower  the 
executive  thereof  to  make  temporary  appointments  until  the 
people  fill  the  vacancies  by  election  as  the  legislature  may 
direct. 

"This  amendment  shall  not  be  so  construed  as  to  affect 
the  election  or  term  of  any  senator  chosen  before  it  becomes 
valid  as  part  of  the  Constitution." 

35.   THE   COMMITTEES  OF   THE  SENATE. 

In  1900  there  were  fifty-five  standing  and  eight  select  commir 
of  the  Senate.     Concerning  the  appointment  of  these  committees 
and  their  procedure  in  transacting  the  business  of  the  Senate,  Mr. 
Brainard  A  very,  formerly  clerk  of  the  committee  on  agriculture  and 
forestry,  writes  as  follows: 

Since  1840  it  has  been  the  practice  for  both  caucuses  of 
the  majority  and  minority  members  of  the  Senate  each  to 
name  a  "steering  committee, M  composed  of  from  five  to  nine 
Senators.  These  steering  committees  name  for  their  respective 
caucuses  a  Committee  on  Committees  which  prepares  a  list 
of  chairmen  and  a  schedule  for  membership  of  all  the  com- 
mittees. In  compiling  these  lists  the  rule  of  seniority  of 
service  has  much  to  do  with  the  assignment  of  committee 
chairmanships;  the  Senator  having  the  longest  period  of 
consecutive  service  upon  the  committee  is  ordinarily  entitled 
to  the  chairmanship  of  that  committee,  when  the  organization 
belongs  to  his  party.  Thus,  we  find  States  of  the  Union, 
which  continuously  return  the  same  Senators  to  Congress, 
become,  by  this  unwritten  rule  of  seniority,  possessed  of  the 
most  important  chairmanships,  which  fact  naturally  gives 
those  States  some  advantage  in  directing  the  course  of  legis- 
lation. 

Of  the  entire  Senate,  the  average  number  of  standing  com- 
mittees to  which  each  Senator  is  assigned  is  six.  Yet,  many 
Senators  have  places  on  seven  different  committees;  and  at 
present,  two  Senators  serve  on  eight  committees.  This  is  in 


THE  SENATE  163 

striking  contrast  with  the  practice  in  the  House,  where  each 
member,  as  a  .rule,  is  assigned  to  only  one  or  two  commit- 
tees, and  rarely  to  three. 

It  does  not  follow,  however,  that  the  Senator  having  the 
largest  number  of  committee  assignments  is  the  oldest  or  the 
most  influential.  On  the  contrary,  many  Senators  as  they  age 
in  the  public  service  drop  some  of  their  minor  committee 
assignments,  and  confine  themselves  to  a  few  of  the  most  im- 
portant committees,  where  their  efforts  can  be  best  applied 
and  prove  most  effective.  Rarely  is  it  possible  for  a  Senator 
to  obtain  assignment  to  two  of  the  leading  committees 
simultaneously.  A  notable  exception  to  this  rule  is  Senator 
Allison,  of  Iowa,  who  is  chairman  of  the  Committee  on  Appro- 
priations, the  most  powerful  committee  in  Congress,  and, 
also,  is  a  member  of  the  Committee  on  Finance,  the  committee 
next,  perhaps,  in  importance. 

The  slate  prepared  by  this  Committee  on  Committees  is  sub- 
mitted to  the  party  caucus  convened  in  secret  session,  and 
when  ratified  by  a  majority  of  the  caucus,  is  forced  through 
the  Senate  by  a  strictly  party  vote.  Reorganization  of  com- 
mittees usually  occurs  at  the  beginning  of  a  Congress,  and 
attempts  to  change  their  organization  have  given  occasion  for 
celebrated  political  fights  and  compromises.  The  last  com- 
plete organization  of  the  Senate  committees  occurred  in  1895. 
Neither  the  Democratic  nor  the  Republican  caucuses  had  a 
clear  majority  in  the  Senate,  and  the  balance  of  power  was 
wielded  by  six  Populist  Senators.  The  Republicans  were 
enabled  by  a  combination  to  possess  themselves  of  the  com- 
mittee chairmanships,  but  many  of  the  committees  were  com- 
posed of  a  majority  adverse  to  Republican  policy.  An  illus- 
tration of  this  was  afforded  by  the  Committee  on  Finance, 
which,  although  presided  over  by  a  distinguished  Republi- 
can Senator,  reported  favorably  a  bill  for  "the  free  and  un- 
limited coinage  of  silver."  The  custom  is  for  the  dominant 
political  party  to  name  the  committees  so  that  each  com- 
mittee shall  have  a  majority  in  accord  with  its  political 
faith.  Thus,  the  Committee  on  Finance,  with  a  membership 


164  EEADINGS  IN  CIVIL  GOVERNMENT 

of  thirteen  Senators,  as  at  present  constituted,  is  composed 
of  eight  Republicans  and  five  Democrats,  with  a  Republican 
chairman.  But,  an  exception  to  this  rule  is  found  in  several 
of  the  smaller  non-political  committees,  some  of  which  are 
assigned  to  leading  Senators  of  the  minority,  out  of  respect 
for  their  long  service  in  the  Chamber. 

The  Committee  on  Rules  assigns  one  or  more  rooms  to 
each  committee.  These  committee  rooms,  for  the  most  part, 
are  located  in  the  Senate  wing  of  the  Capitol,  and  are  fur- 
nished much  like  private  apartments.  The  old  oblong  com- 
mittee tables — many  of  them  historic  boards — have  been 
gradually  displaced,  and  the  committee  rooms  more  or  less 
closely  resemble  private  libraries,  sumptuous  with  mahogany 
furniture,  leather-covered  chairs  and  handsomely  bound  books. 

Upon  assuming  the  chairmanship,  a  Senator  takes  posses- 
sion of  the  room  assigned  to  his  committee,  and  during  his 
chairmanship  it  remains  not  only  the  home  of  his  committee, 
but  his  personal  headquarters,  whence  he  may  direct  the  con- 
duct of  political  affairs  in  his  State. 

Each  committee  is  provided  with  a  clerk,  whose  pay  ranges 
from  $1,800  to  $3,000  per  annum.  Occasionally  a  committee 
has  an  assistant  clerk,  with  pay  at  from  $1,800  to  $2,220,  a 
messenger  at  $1,440,  and  a  staff  of  other  assistants,  accord- 
ing to  the  importance  of,  and  amount  of  work  before  the 
committee. 

Each  bill  has  (as  a  matter  of  course)  two  readings  in  the 
open  Senate,  after  which  it  is  referred  to  the  committee 
having  jurisdiction  of  the  subject-matter  of  the  bill.  Often 
questions  of  doubt  exist  as  to  which  committee  a  given  bill 
should  be  referred.  The  fate  of  a  bill  may  depend  upon 
what  committee  it  comes  before — whether  it  must  face  a 
tribunal  of  friends,  or  of  foes.  A  recent  example  is  the  bill 
now  pending  in  the  Senate,  providing  that  a  ten  per  cent, 
tax  shall  be  imposed  upon  oleomargarine  and  its  products. 
This  involving  a  question  of  taxation,  the  Committee  on 
Finance  ordinarily  would  be  entitled  to  consider  the  meas- 
ure; but  the  real  purpose  being  to  adopt  a  new  agriculture 


THE  SENATE  165 

policy,  i.  e.,  that  of  destroying  the  trade  in  imitation  butters 
by  the  imposition  thereon  of  a  prohibitive  tax,  carried  the 
bill  to  the  Committee  on  Agriculture. 

Questions  as  to  the  reference  of  bills  are  determined  by 
the  Senate,  but  rarely  is  there  difficulty,  since  bills  are  cus- 
tomarily referred  "appropriately  referred"  under  the  rule 
at  the  time  they  are  introduced.  In  addition,  all  petitions, 
memorials,  and  papers  relating  to  bills  are  sent  to  the  appro- 
priate committee  for  consideration  when  the  committee  takes 
up  the  bill. 

After  introduction  and  reference  in  the  Senate  Chamber, 
the  original  draft  of  a  bill  goes  to  the  desk  of  the  Secretary 
of  the  Senate,  where  a  record  of  it  is  entered,  and  on  the 
following  day  a  printed  copy  is  delivered  at  the  room  of  the 
committee  to  which  the  Senate  ordered  the  bill  referred.  The 
bill  can  then  be  said  to  be  in  the  possession  of  the  committee. 

After  the  clerk  has  docketed  each  bill  and  its  accompanying 
papers,  the  usual  routine  is  that  all  bills  relating  to  an  execu- 
tive department  of  the  government  shall  be  referred  to  the 
head  of  the  department  concerned.  Thus,  bills  sent  to  the 
Military  Committee  are,  under  a  standing  order  adopted  by 
the  committee,  referred  to  the  Secretary  of  War  for  recom- 
mendation. Upon  the  return  of  the  papers  the  chairman 
usually  assigns  the  bill  to  a  sub-committee  of  his  committee. 
These  sub-committees  are  composed  usually  of  from  two  to 
five  Senators,  who,  more  or  less  informally,  discuss  and  amend 
the  bill  and  draft  their  report.  Both  the  bill  and  the  report 
are  presented  at  a  meeting  of  the  full  committee,  passed 
upon,  and  a  report,  either  favorable  or  adverse,  ordered  to 
be  made  to  the  Senate.  Oftentimes  the  minority  of  a  com- 
mittee disagreeing  with  the  majority,  will  file  a  "minority 
report, ' '  setting  forth  the  reasons  of  their  dissent. 

An  individual  Senator,  by  his  ability  and  special  aptitude 
for  particular  branches  of  legislation,  is  sometimes  permitted 
by  his  colleagues  upon  the  committee,  to  perform  the  func- 
tions of  both  committee  and  sub-committee.  Thus,  Senator 
Vest,  of  Missouri,  a  strong  partisan  in  a  Senate  overwhelm- 


166  READINGS  IN  CIVIL  GOVERNMENT 

ingly  opposed  to  him  politically,  possesses  by  courtesy  of 
the  Committee  on  Commerce,  of  which  he  is  a  member,  the 
privilege  of  passing  for  that  committee  (except  in  cases  where 
there  is  a  contest)  upon  bills  relating  to  the  bridging  of 
navigable  waters  of  the  United  States — a  very  important  func- 
tion of  Congress. 

Frequently,  cabinet  officers  appear  voluntarily,  or  by  in- 
vitation, before  a  committee  or  sub-committee,  to  explain  cer- 
tain legislation  which  they  desire,  and  are  interrogated  by 
members  of  the  committee. 

The  chairman  of  a  committee  relating  to  one  of  the  execu- 
tive departments  is  an  important  factor  at  the  department. 
He  is  brought  into  close  relations  with  departmental  affairs 
and  with  the  Secretary,  and  frequently  becomes  his  constant 
adviser.  This  is  especially  true  of  committees  which  con- 
sider appropriation  bills,  and  subjects  more  nearly  executive 
than  legislative.  Officials  of  the  departments  concerned  are 
careful  not  to  incur  the  disfavor  of  the  chairman  or  any  of 
the  members  of  the  committee,  iu  each  House  oi  Congress, 
upon  which  they  depend  for  appropriations  and  for  special 
legislation. 

The  importance  of  this  contact  of  the  legislative  with  the 
executive  departments  of  the  government  is  forcibly  illus- 
trated in  the  relations  which  the  chairman  of  the  Senate  Com- 
mittee on  Foreign  Relations  bears  to  the  President  and  the 
Secretary  of  State,  in  formulating  the  foreign  policy  of 
the  Administration.  The  Senate  shares  with  the  President  the 
treaty-making  power,  which  the  Constitution  declares  to  be 
a  part  of  the  law-making  power.  The  Senate  thus  secures  a 
general  control  over  the  foreign  policy  of  the  Administration. 
Treaties  which  have  been  signed  are  submitted  to  the  Senate 
for  ratification,  and  find  their  way  to  the  Committee  on  For- 
eign Relations.  It  usually  behooves  the  President  to  keep  in 
touch  with  the  majority  in  the  Senate,  and  feel  its  pulse  as 
to  treaties  in  progress  of  negotiation.  This  is  naturally  done 
through  the  Committee  on  Foreign  Relations,  and  its  chair- 
man is  often  consulted  in  advance. 


THE  SENATE  167i 


36.    THE  FREEDOM   OF   DEBATE  IN   THE   SENATE. 

The  strict  limitation  of  debate  which  the  House  has  found  it  neces- 
sary to  impose  is  in  sharp  contrast  to  the  utter  lack  of  restraint 
which  prevails  in  the  Senate.  In  the  following  selection,  Professor 
Paul  Reinsch  refers  to  some  extreme  instances  of  the  abuse  of  this 
privilege  and  points  out  the  evil  consequences  which  result  from  it: 

The  principal  characteristic — though  a  negative  one — of 
the  procedure  of  the  Senate,  is  the  total  absence  of  all  rules 
in  any  way  limiting  discussion.  The  use  of  the  previous 
question  was  abolished  early  in  the  history  of  the  Senate,  and 
Clay's  attempt  to  reintroduce  it  in  1840  did  not  succeed. 
Since  then  the  Senate  has  come  to  look  upon  the  complete 
freedom  of  discussion  as  its  most  cherished  attribute,  as  indeed 
it  does  guarantee  the  dignity  and  importance  of  each  indi- 
vidual member. 

The  unlimited  liberty  and  opportunity  of  speech  has  how- 
ever been  repeatedly  abused  in  the  recent  past,  and  turned 
to  purposes  not  in  harmony  with  the  idea  of  rational  delibera- 
tion. The  silver  senators  were  the  first  to  make  unduly 
extensive  use  of  this  freedom  of  debate  to  tire  out  the  opposi- 
tion to  their  measures.  Senator  Carter's  well-known  per- 
formance, when,  at  the  end  of  the  session  of  1901,  by  means 
of  a  harangue  of  thirteen  hours,  he  defeated  the  river  and 
harbor  bill,  did  not  subject  him  to  severe  censure,  because 
that  bill  was  not  generally  regarded  as  a  wise  measure.  But 
his  action,  considering  his  motive — to  punish  the  Senate  for 
not  having  given  him  a  coveted  appropriation  for  irrigation 
purposes — would  certainly  not  bear  repeating  very  often 
without  seriously  discrediting  the  Senate.  The  latter  was  in 
fact  the  result,  when  Senator  Quay,  himself  and  by  proxy, 
with  interminable  talk  tried  to  shut  out  other  measures  and 
filibustered  for  his  statehood  bill.  Nor  did  Senator  Morgan 's 
probable  conscientiousness  in  his  objections  to  the  Panama 
Canal  free  from  censure  his  use  of  a  like  method.  When 
Senator  Platt  of  Connecticut  poured  forth  everlasting  dis- 
courses on  Cuban  reciprocity,  it  was  with  the  incidental  pur- 


168  READINGS  IN  CIVIL  GOVERNMENT 

pose  of  side-tracking  tariff  revision.  Earnest,  explicit,  and 
thorough  discussion  of  a  measure  has  become  a  favorite 
method  of  the  Senate  for  the  postponement  and  defeat  of 
other  measures,  an  open  attack  upon  which  would  be  con- 
sidered impolitic.  What  Senator  Carter  did  in  1901,  the 
representative  of  South  Carolina  threatened  to  do  two  years 
later,  in  his  successful  attempt  to  force  upon  the  Senate  a 
claim  of  his  state  for  $47,000,  which,  after  deduction  of  a 
valid  federal  set-off  as  adjudicated  by  the  proper  authorities, 
actually  amounted  to  34  cents.  This  extreme  instance  of 
what  Senator  Vest  called  blackmailing  the  Senate,  seems  to 
have  been  the  straw  that  broke  the  camel's  back.  It  aroused 
a  deep  sense  of  indignation  on  the  part  of  the  House,  lead- 
ing to  the  firm  resolve  not  to  submit  to  such  tactics  on  the 
part  of  the  Senate  in  the  future. 

At  the  end  of  the  session,  after  legislative  measures  have 
been  subjected  to  extensive  discussion  in  the  Senate,  and  when 
little  or  no  time  remains  for  action  in  the  House,  the  confer- 
ence committees  meet  to  discuss  the  points  of  difference  be- 
tween the  two  houses.  At  this  time  the  representatives  of 
the  Senate  are  apt  to  use  the  inability  of  that  body  to  close 
discussion  as  a  cudgel  to  be  held  over  the  House  of  Repre- 
sentatives, in  order  to  force  it  to  accept  the  point  of  view  of 
the  Senate.  Their  arguments  upon  such  occasions  take  the 
following  form,  "This  is  the  best  we  can  secure.  Should 
introduce  an  enactment  complying  with  the  wishes  of  the 
House,  it  would  inevitably  be  talked  to  death  by  certain  sena- 
tors who  are  opposed  to  this  measure.  Therefore,  if  any  ac- 
tion is  to  be  had  at  all  we  must  adopt  the  compromise  pro- 
posed by  the  Senate."  The  repeated  use  of  this  argument 
finally  drove  the  leaders  of  the  House  to  remonstrance;  after 
the  incident  of  the  claim  mentioned  above  they  made  a  decla- 
ration of  independence.  Under  the  rules  of  the  House,  gen- 
eral appropriation  bills  are  not  allowed  to  include  changes 
of  existing  law.  But  the  Senate  has  no  such  rule,  and,  in  the 
words  of  Mr.  Hull,  "there  is  hardly  a  conference  report 
adopted  by  the  House  that  does  not  contain  legislation  which 


THE  SENATE  169 

could  not  have  been  brought  in  under  the  rules/'  When  in 
February,  1903,  the  Senate  added  to  the  army  appropriation 
bill  an  amendment  of  the  law  concerning  the  retirement  of  of- 
ficers, it  was  pointed  out  that  these  provisions  would  have  no 
standing  under  the  House  rules  and  Mr.  Cannon  declared, 
*  '  In  this  body  close  to  the  people,  we  proceed  under  the  rules. 
In  another  body  .  .  .  legislation  is  by  unanimous  con- 
sent/' But  indignation  rose  to  its  full  height,  when  the 
South  Carolina  claim  had  been  forced  down  the  unwilling 
throats  of  the  powerless  conference  committeemen  of  the 
House.  On  this  occasion  Mr.  Cannon  made  the  following 
statement  of  remonstrance: 

1 '  Gentlemen,  know  that  under  the  practice  of  the  House  and 
ander  the  rules  of  the  Senate  the  great  money  bills  can  con- 
tain nothing  but  appropriations  in  pursuance  of  existing  law, 
unless  by  consent  of  both  bodies.  If  any  one  of  these  bills 
contains  legislation,  it  must  be  by  the  unanimous  consent  of 
the  two  bodies,  and  the  uniform  practice  has  been,  so 
far  as  I  know,  the  invariable  practice  has  been  with  the 
exception  of  one  amendment  upon  this  bill,  that  when  one 
body  objected  to  legislation  proposed  by  the  other  upon  an 
appropriation  bill,  the  body  proposing  the  legislation  has  re- 
ceded. .  .  . 

"The  House  conferees  objected,  and  the  whole  delay  has 
been  over  that  one  item.  In  the  House  of  Representatives, 
without  criticizing  either  side  or  any  individual  member,  we 
have  rules,  sometimes  invoked  by  our  Democratic  friends  and 
sometimes  by  ourselves — each  responsible  to  the  people  after 
all  said  and  done — by  which  a  majority,  right  or  wrong,  mis- 
taken or  otherwise,  can  legislate. 

1  i  In  another  body  there  are  no  such  rules.  In  another  body 
legislation  is  had  by  unanimous  consent.  In  another  body  an 
individual  member  of  that  body  can  rise  in  his  place  and  talk 
for  one  hour,  two  hours,  ten  hours,  twelve  hours.  .  .  . 

".  .  .  Your  conferees  were  unable  to  get  the  Senate  to 
recede  upon  this  gift  from  the  treasury  against  the  law,  to 
the  state  of  South  Carolina.  By  unanimous  consent  another 


170  HEADINGS  IN  CIVIL  GOVERNMENT 

body  legislates,  and  in  the  expiring  hours  of  the  session  we 
are  powerless  without  that  unanimous  consent.  . 

"Gentlemen,  I  have  made  my  protest.  I  do  it  in  sorrow 
and  in  humiliation,  but  there  it  is ;  and  in  my  opinion  another 
body  under  these  methods  must  change  its  methods  of  pro- 
cedure, or  our  body,  backed  up  by  the  people,  will  compel  that 
change,  else  this  body,  close  to  the  people,  shall  become  a 
mere  tender,  a  mere  bender  of  the  pregnant  hinges  of  the 
knee,  to  submit  to  what  any  one  member  of  another  body  may 
demand  of  this  body  as  a  price  for  legislation." 

It  can  admit  of  little  doubt  that  in  its  opposition  to  the  use 
of  the  liberum  veto  by  individual  senators,  the  House  will  en- 
joy the  full  sympathy  and  the  hearty  support  of  the  Ameri- 
can people.  Nor  can  the  members  of  the  Senate  themselves 
desire  that  such  a  practice  should  become  customary,  for, 
though  it  would  upon  occasion  give  individual  senators  givjtt 
power,  it  would  soon  completely  undermine  the  credit  and 
authority  of  the  Senate.  It  is  a  distinctly  feudal  principle, 
by  which  the  desire  of  one  man,  however  prominent,  may  de- 
feat the  action  of  the  State — a  principle  similar  to  that  which 
resulted  in  the  political  disasters  and  ultimate  downfall  of 
Poland.  In  the  United  States,  great  interests,  struggling  for 
feudal  privileges,  might  be  glad  to  entrench  themselves  be- 
hind the  liberum  veto  of  individual  senators  whom  they  con- 
trol. But  the  more  statesmanlike  influences  in  this  body  op- 
pose such  a  degradation;  and  they  have  not  permitted  the 
frequent  abuse  of  this  great*  discretionary  power,  which  has 
been  confined  generally  to -the  defeat  of  minor  or  local  legis- 
lation. The  danger,  however,  is  present  and  calls  for  constant 
watchfulness  on  the  part  of  the  men  whose  aim  it  is  to  in- 
crease the  true  authority  and  dignity  of  the  Senate. 

37.   THE   USURPED   POWER  OP   THE   SENATE. 

Hamilton  was  of  the  opinion  that  the  Senate  would  prove  to  be 
weaker  than  the  House  because  it  would  not  stand  in  such  close  re- 
lation to  the  people.  In  the  course  of  events,  however,  the  opposite 
has  come  to  be  true.  Mr.  James  Bryee  ascribes  this  result  to  the 


THE  SENATE  171 

circumstance  that  the  Senate  stands  as  a  "center  of  gravity  in  the 
government,  an  authority  able  to  correct  and  check  on  the  one  hand 
the  'democratic  recklessness'  of  the  House,  and  on  the  other  the 
'monarchical  ambition'  of  the  President.  Placed  between  the  two, 
it  is  necessarily  the  rival  and  often  the  opponent  of  both.  The 
House  can  accomplish  nothing  without  its  concurrence.  The  Presi- 
dent can  be  checkmated  by  its  resistance."  That  the  Senate  has 
taken  advantage  o*f  this  situation  to  usurp  functions  not  conferred 
upon  it  by  the  Constitution  is  the  opinion  of  Mr.  A.  M.  Low: 
[1907]. 

Never  did  human  ingenuity  devise  a  more  nicely  balanced 
system  of  government  than  when  the  framers  of  the  Constitu- 
tion allocated  to  the  executive  and  to  the  legislature  the  ex- 
ercise of  powers  not  to  be  infringed  by  the  other;  but  like 
many  things  human  the  intent  has  been  perverted.  Every 
person  familiar  with  the  Constitution,  the  debates  in  the  con- 
vention, and  the  writings  of  Madison,  Hamilton,  and  Jay  in 
The  Federalist,  must  know  that  the  purpose  of  the  framers 
of  the  Constitution  was  to  create  a  system  of  government  by 
which  the  President  should  become  neither  the  creature  nor 
the  controller  of  the  legislature;  and  by  vesting  certain  ex- 
clusive powers  in  the  popular  branch  and  certain  other  pow- 
ers in  the  Senate  to  provide  that  the  line  of  demarcation  be- 
tween the  two  houses  should  not  be  overstepped.  What  they 
feared  and  believed  they  had  effectually  guarded  against  was 
an  executive  who  would  become  possessed  of  autocratic  pow- 
ers; what  they  dreaded  no  less  was  a  legislature  that  would 
reduce  the  President  merely  to  a 'puppet — a  puppet  to  dance 
when  Congress  pulled  the  strings.  Monarchical  Europe  and 
the  Roman  republics  had  warned  them  of  the  danger  to  the 
liberties  of  the  people  when  the  king  was  the  source  of  all 
power,  or  when,  in  a  republic,  that  power  was  usurped  by  a 
council  or  other  elected  body  supposed  to  safeguard  the  peo- 
ple against  the  encroachments  of  the  executive.  .  .  . 

I  have  thus  briefly  sketched  what  my  study  of  the  Constitu- 
tion has  taught  me  was  the  intent  of  its  framers,  and  I  now 
propose  to  show  how  this  intent  has  been  perverted.  But 
before  doing  so  let  me  summarize  the  broad  principles  of  the 
Constitution.  It  was  contemplated  that  there  should  be: 


172  READINGS  IN  CIVIL  GOVERNMENT 

First,  an  executive  untrammeled  by  the  legislature  in  the 
exercise  of  his  constitutional  rights.  Second,  a  Senate  which 
should  supervise  the  executive  so  as  to  prevent  the  appoint- 
ment of  improper  or  unfit  persons  to  public  office,  or  the  mak- 
ing of  treaties  detrimental  to  national  interests;  and  which 
should  have  co-ordinate  powers  with  those  of  the  House  of 
Representatives  except  in  legislation  affecting  "  money  bills. " 
Third,  a  House  of  Representatives  that  should  have  control 
over  the  national  purse.  How  far  have  the  American  people 
departed  in  principle  from  the  scheme  of  their  Fathers  T 

Perhaps  the  most  important  divergence,  which  is  almost  the 
most  dangerous  to  the  rights  and  liberties  of  the  people  and 
to  the  future  of  the  republic,  is  the  right  arrogated  by  the 
Senate  (which,  I  regret  to  say,  has  been  ratified  by  the  Su- 
preme Court)  to  control  the  purse,  which  in  its  broader  sense 
means  not  only  the  right  to  make  appropriations  but  the 
higher  privilege  to  impose  taxation.  The  Constitution  pro- 
vides that  all  bills  raising  revenue  shall  originate  in  the  House 
of  Representatives;  but  the  Senate  has  power  to  amend  these 
bills.  By  this  power  of  amendment  the  Senate  has  defeated 
the  purpose  of  the  Constitution,  which  was  to  retain  the  tax- 
ing power  in  the  hands  of  the  representatives  of  the  people. 
The  tariff,  which  is  the  great  source  of  revenue,  is  no  longer 
the  creation  of  the  House.  The  House  passes  a  tariff  bill, 
which  the  Senate  proceeds  to  " amend"  in  accordance  with 
its  own  views  or  the  special  interest  represented  by  particular 
Senators.  Surely  when  the  Senate  strikes  out  of  a  tariff  bill 
passed  by  the  House  everything  except  the  enacting  clause, 
writes  in  a  new  bill,  and  returns  it  to  the  House  with  an  ulti- 
matum that  the  House  must  either  accept  the  Senate  ' '  amend- 
ment "  or  no  tariff  bill  will  be  passed,  it  is  obvious  that  that 
particular  bill  has  originated  in  the  Senate,  even  though  the 
constitutional  form  has  been  observed  because  its  origin  can 
be  traced  to  the  House. 

When  we  turn  to  the  consideration  of  amendments  made  by 
the  Senate  to  ' '  money ' '  or,  as  we  now  term  them,  * '  appropria- 
tion ' '  bills,  they  are  so  numerous  that  it  is  impossible  to  cata- 


THE  SENATE  173 

logue  them.  As  a  matter  of  practice  appropriation  bills  are, 
almost  invariably,  initiated  by  the  House;  but  the  Senate  re- 
gards the  House  bill  not  as  a  finality  but  as  a  " project"  (to 
use  the  word  applied  by  a  Senator  to  describe  a  treaty  sent  to 
the  Senate  for  ratification).  In  other  words,  the  bill  passed 
by  the  House  is  a  scheme  expressing  the  views  of  the  House 
in  regard  to  the  disbursement  of  the  public  moneys,  but  of  no 
more  binding  force  than  a  recommendation  made  by  the  head 
of  a  department.  It  is  notorious  that  the  Senate  almost  in- 
variably increases  the  appropriations  made  by  the  House;  it 
is  equally  notorious  that  in  any  contest  between  the  House  and 
the  Senate  it  is  the  House  that,  nine  times  out  of  ten,  has  to 
yield  to  the  Senate.  .  .  . 

" Executive  usurpation"  has  been  a  favorite  theme  of  writ- 
ers and  speakers  (especially  during  the  last  few  years)  who, 
relying  upon  their  rhetoric  rather  than  their  facts,  have  de- 
plored the  growing  power  of  the  executive  and  longed  for  a 
return  to  the  early  days  when  the  President  respected  the 
powers  vested  in  the  legislature.  But,  as  a  matter  of  fact,  if 
there  has  been  usurpation  that  of  the  President  is  trivial  com- 
pared to  that  of  the  Senate.  In  the  exercise  of  the  two  most 
important  functions  reposed  in  the  executive — the  conduct  of 
foreign  relations  and  the  power  of  appointment — the  purpose 
contemplated  by  the  framers  of  the  Constitution  has  been  so 
thoroughly  perverted  by  the  usurpation  of  the  Senate  that  the 
original  relation  existing  between  the  President  and  the  Sen- 
ate has  been  reversed. 

In  dividing  the  responsibility  for  appointments  between  the 
President  and  the  Senate — that  is,  in  making  the  presidential 
appointment  subject  to  confirmation  by  the  Senate — it  was  in- 
tended to  put  in  the  hands  of  the  Senate  the  power  to  prevent 
the  President  from  making  an  improper  appointment;  but 
it  was  not  intended  that  the  Senate  should  be  able  to  dictate 
the  President's  nominees.  That  possible  assumption  was 
scouted  as  preposterous. 

"It  will  be  the  office  of  the  President,"  Hamilton  wrote, 
11  to  nominate,  and  with  the  advice  and  consent  of  the  Senate, 


174  READINGS  IN  CIVIL  GOVERNMENT 

to  appoint.  There  will,  of  course  (mark  the  words)  be  no 
exertion  of  choice  on  the  part  of  the  Senate.  They  may  de- 
feat one  choice  of  the  executive,  and  oblige  him  to  make  an- 
other; but  they  cannot  themselves  choose — they  can  only 
ratify  or  reject  the  choice  of  the  President.  They  might  even 
entertain  a  preference  to  some  other  person,  at  the  very  mo- 
ment they  were  assenting  to  the  one  proposed;  because  there 
might  be  no  positive  ground  of  opposition  to  him,  and  they 
could  be  sure,  if  they  withheld  their  assent,  that  the  subse- 
quent nomination  would  fall  upon  their  own  favorite,  or  upon 
any  other  person  in  their  estimation  more  meritorious  than 
the  one  rejected.  Thus  it  could  hardly  happen  that  the  ma- 
jority of  the  Senate  would  feel  any  other  complacency  to- 
wards the  object  of  an  appointment  than  such  as  the  appear- 
ances of  merit  might  inspire,  and  the  proofs  of  the  want  of  it 
destroy." 

But  Hamilton,  wise  man  though  he  was,  could  not  antici- 
pate a  time  when  "the  courtesy  of  the  Senate"  would  put  it 
in  the  power  of  a  single  Senator  to  defeat  a  nomination,  nay, 
even  more  than  that,  to  coerce  a  President  into  nominating 
a  man  of  whom  he  did  not  approve.  One  has  only  to  recall 
the  contest  between  Cleveland  and  the  Senate  and  that  be- 
tween Harrison  and  the  Senate,  and  to  remember  that  Mc- 
Kinley  as  well  as  Roosevelt  had  to  steer  a  very  fine  course  to 
avoid  shipwreck  of  their  nominations,  to  become  convinced 
that  the  Hamiltonian  doctrine  is  archaic,  and  that  that  * '  com- 
placency" to  which  Hamilton  referred  instead  of  being  in- 
spired by  "the  appearances  of  merit'''  springs  from  self-in- 
terest. 

The  relations  between  the  President  and  the  Senate  are  har- 
monious so  long  as  the  President  defers  to  the  Senate  and  the 
Senate  is  willing  to  pretend  deference  to  the  President;  but 
any  assertion  of  independence  on  the  part  of  the  President  is 
bound  to  lead  to  a  clash.  Seeing  only  the  results,  but  un- 
aware of  the  causes,  certain  superficial  observers  are  fond  of 
saying  that  the  President  can  control  the  Senate  because  of 
the  President's  power  of  patronage,  thus  unconsciously  voic- 


THE  SENATE  175 

ing  the  fear  of  Hamilton  that  "sometimes  we  are  told  that 
this  fund  of  corruption  is  to  be  exhausted  by  the  President 
in  subduing  the  virtue  of  the  Senate/'  But  the  power  of 
the  President  to  appoint  is  a  power  exercised  only  by  the 
permission  of  the  Senate.  The  President  is  not  a  free  agent 
in  the  exercise  of  the  appointing  power.  Unlike  the  king  of 
England  he  does  not  deal  with  one  man,  the  responsible  head 
of  the  majority  party  in  Commons.  The  President  must  deal 
with  ninety  Senators.  It  would  be  "discourteous"  to  a 
Senator  for  him  to  appoint  a  man  who  is  personally  offensive 
to  that  particular  Senator,  quite  irrespective  of  the  reasons 
that  animate  that  Senator.  Virtually  the  Senate  has  now 
become  the  appointing  power,  although  to  save  the  shadow 
of  the  Constitution  appointments  are  still  made  by  the  Presi- 
dent. 

Hamilton  explained  why  the  convention  deemed  it  wise  that 
treaties  should  be  ratified  by  the  Senate.  The  President  was 
not  to  be  given  that  absolute  authority  possessed  by  a  sov- 
ereign in  the  negotiation  of  treaties  that  would  enable  the 
President  to  betray  his  country  if  he  were  venal,  but  at  the 
same  time  he  was  to  be  given  such  latitude  as  would  insure 
"that  perfect  secrecy  and  immediate  despatch"  which  are 
sometimes  "requisite."  As  showing  the  relation  that  Ham- 
ilton conceived  would  exist  between  the  President  and  the 
Senate  in  the  negotiation  and  ratification  of  treaties  he  said : 
"Should  any  circumstances  occur  which  require  the  advice 
and  consent  of  the  Senate  he  may  at  any  time  convene  them. 
Thus  we  see  that  the  Constitution  provides  that  our  negotia- 
tions for  treaties  shall  have  every  advantage  which  can  be 
derived  from  talents,  information,  integrity,  and  deliberate 
investigations,  on  the  one  hand,  and  from  secrecy  and  despatch 
on  the  other." 

Once  again  we  see  how  the  spirit  of  the  Constitution  has 
been  perverted  by  the  assumption  of  the  Senate.  The  Presi- 
dent negotiates  a  treaty ;  but  that  treaty  the  Senate  regards  in 
the  same  light  as  it  does  an  appropriation  bill  passed  by  the 
House.  It  is  merely  a  scheme,  a  "project,"  an  outline  ex- 


176  HEADINGS  IN  CIVIL  GOVERNMENT 

pressing  the  views  of  the  negotiators,  which  the  Senate  will 
accept  or  reject  at  its  pleasure,  and  of  recent  years  the  Sen- 
ate has  shown  what  amounts  almost  to  a  mania  to  amend 
treaties;  and  unless  the  President  accepts  the  amendment  a 
treaty  that  may  have  been  the  work  of  months  of  careful  and 
intricate  negotiations  is  wrecked.  President  McKinley,  in 
his  great  desire  to  remain  on  harmonious  terms  with  the  Sen- 
ate, permitted  that  body  a  further  and  unconstitutional  grant 
of  authority.  By  the  terms  of  the  treaty  with  Great  Britain 
relating  to  the  tenure  and  disposition  of  real  and  personal 
property,  possessions  of  the  United  States  beyond  the  seas 
were  to  be  permitted  to  adhere  to  the  convention  upon  notice 
"  being  given  by  the  representative  of  the  United  States  at 
London,  by  direction  of  the  President. "  This  the  Senate 
amended  to  read  * '  by  direction  of  the  treaty-making  power  of 
the  United  States, "  which  gives  to  the  Senate  the  right  to  di- 
rect the  American  ambassador  in  London,  for  which  no  war- 
rant can  be  found  in  the  Constitution. 

Jackson,  jealous  of  his  own  prerogatives  and  the  encroach- 
ments of  the  Senate,  used  this  admonitory  language  in  de- 
fining the  line  of  division  between  the  executive  and  legis- 
lative branches  of  the  government.  "The  resolution  of  the 
Senate  presupposes  a  right  in  that  body  to  interfere  in  this 
exercise  of  executive  power.  If  the  principle  be  once  ad- 
mitted ...  the  constitutional  independence  of  the  Exec- 
utive Department  would  be  as  effectually  destroyed  and  its 
powers  as  effectually  transferred  to  the  Senate  as  if  that  end 
had  been  accomplished  by  an  amendment  to  the  Constitu- 
tion/' .  .  . 

The  Senate  now  assumes  the  right  not  only  to  amend 
treaties,  so  that  by  the  power  of  amendment  it  exercises  the 
same  control  over  the  conduct  of  foreign  relations  as  it  does 
over  the  national  purse,  but  also  to  be  consulted  in  advance  of 
and  during  the  progress  of  treaty  negotiations ;  and  if  it  is  not 
consulted  in  advance  it  resents  the  implied  imputation  of 
presidential  distrust.  That  "perfect  secrecy  and  immediate 
despatch/'  which  Hamilton  deemed  requisite,  are  of  course 


THE  SENATE  177 

impossible  if  the  Senate  must  be  consulted  in  advance;  and 
even  after  the  unofficial  advice  of  the  Senate  has  been  taken, 
Senators  are  not  precluded  from  reversing  their  judgment. 
The  late  Secretary  Hay  complained  bitterly  of  certain  Sena- 
tors opposing  a  treaty  in  the  Senate  the  terms  of  which  they 
had  acquiesced  in  while  that  treaty  was  under  negotiation. 
More  than  once  I  have  heard  Mr.  Hay  say  that  in  dealing  with 
foreign  governments  he  felt  as  if  he  had  one  hand  tied  be- 
hind his  back  and  a  ball  and  chain  about  his  leg,  as  he  was 
always  hampered  by  the  Senate. 

38.   A  DEFENSE  OF  THE  SENATE. 

Senator  Henry  C.  Lodge  is  one  of  the  most  outspoken  defenders 
of  the  powers  which  the  Senate  has  developed  in  recent  years.  He 
thus  explains  the  attitude  of  the  Senate  with  regard  to  its  constitu- 
tional rights  and  prerogatives:  [1903]. 

"When  the  President  of  the  United  States  shall  meet  the 
Senate  in  the  Senate  Chamber  for  the  consideration  of  execu- 
tive business,  he  shall  have  a  seat  on  the  right  of  the  chair." 

This  is  the  rule  at  the  present  time,  and  although  it  is 
never  put  into  practical  operation  it  has  importance  not 
merely  as  embodying  an  unbroken  tradition  but  as  a  formal 
recognition  of  certain  constitutional  principles  of  very  great 
moment.  By  this  rule  are  recognized  the  right  of  the  Presi- 
dent to  consult  personally  with  the  Senate,  the  position  of  the 
Senators  as  the  President's  only  constitutional  advisers  and 
the  equality  of  the  Senate  in  the  conduct  of  all  executive 
business  in  which,  under  the  Constitution,  they  are  entitled 
to  share.  The  right  of  the  President  personally  to  consult 
the  Senate  as  a  body  involves  also  the  correlative  right  of  the 
Senate,  in  the  language  of  the  Constitution,  to  advise  the 
President.  To  the  Senate  alone  is  given  this  right  to  advise 
the  Executive.  The  members  of  the  Cabinet  are  often  loosely 
spoken  of  as  the  constitutional  advisers  of  the  President. 
They  are,  as  a  matter  of  fact,  nothing  of  the  sort.  They  are 
not  created  by  the  Constitution,  but  by  the  laws  which  the 


178  HEADINGS  IN  CIVIL  GOVERNMENT 

Constitution  authorizes  Congress  to  pass  in  order  to  carry  out 
its  provisions.  The  Constitution  contemplates  the  establish- 
ment of  executive  departments,  and  says  that  the  President 
may  require  the  opinion  in  writing  of  the  heads  of  such  de- 
partments, but  these  departments  can  only  exist  by  the  pleas- 
ure of  Congress  and  the  President  is  not  bound  to  consult 
their  chiefs.  A  story  is  told  of  Lincoln 's  submitting  a  propo- 
sition which  he  favored  to  his  Cabinet.  All  were  against  it; 
"Seven  nays;  one  yea,"  said  the  President;  "the  ayes  have 
it,  and  it  is  so  ordered. "  Whether  apocryphal  or  not  the 
anecdote  illustrates  the  distinction  between  the  constitutional 
Senate  and  the  statutory  Cabinet.  An  adverse  majority  in 
the  Senate  cannot  be  overcome  in  that  way,  for  the  Constitu- 
tion gives  the  Senate  power,  and  the  law  alone  creates  the 
Cabinet,  whose  members  represent  in  the  last  analysis  simply 
the  policy  and  will  of  the  Executive.  The  equality  of  tho 
Senate  in  executive  business — the  last  point  recognized  by  the 
rule — is  shown  by  the  care  taken  from  the  beginning  to  make 
it  perfectly  clear  that  the  President  is  neither  to  preside  over 
nor  to  share  in  the  discussions  of  the  Senate,  but  is  to  deal 
with  them  as  an  organized  body  under  the  guidance  of  their 
own  presiding  officer. 

Such  being  the  theory  of  the  Constitution,  never  abandoned 
since  the  beginning,  the  manner  in  which  it  has  been  worked 
out  in  practice  shows  at  once  the  position  of  the  Senate  to- 
day. Since  August,  1789,  the  President  has  uever  consulted 
or  sat  with  the  Senate  in  person  to  consider  executive  busiu 
either  in  relation  to  nominations  or  to  treaties.  But  while  the 
inconvenience  of  personal  consultation  thus  early  was  made 
apparent  it  became  at  once  equally  obvious  that  to  hold  no 
consultation  with  a  body  of  constitutional  advisers  about  nom- 
inations and  treaties  upon  which  they  had  the  power  to  put 
an  absolute  veto  would  be  at  once  dangerous  and  absurd. 

In  1789  Washington  sent  in  the  nomination  of  Benjamin 
Fishburn  for  the  place  of  Naval  Officer  at  the  port  of  Savan- 
nah. He  was  rejected  by  the  Senate.  Fishburn  had  been  an 
old  soldier,  and  was  well  known  to  Washington,  who  was  very 


THE  SENATE  179 

much  annoyed  by  his  rejection.  When  he  sent  in  another 
name  for  the  same  place  he  transmitted  a  message  to  the 
Senate  in  which  he  said:  " Whatever  may  have  been  the 
reasons  which  induced  your  dissent,  I  am  persuaded  that  they 
were  such  as  you  deemed  sufficient.  Permit  me  to  submit 
to  your  consideration,  whether,  on  occasions  where  the  pro- 
priety of  nominations  appears  questionable  to  you,  it  would 
not  be  expedient  to  communicate  that  circumstance  to  me, 
and  thereby  avail  yourselves  of  the  information  which  led  me 
to  make  them,  and  which  I  would  with  pleasure  lay  before 
you.  Probably  my  reasons  for  nominating  Mr.  Fishburn  may 
tend  to  show  that  such  a  mode  of  proceeding,  in  such  cases, 
might  be  useful.  I  will  therefore  detail  them."  He  then 
went  on  to  give  an  account  of  Colonel  Fishburn  and  the  rea- 
sons which  had  led  to  his  nomination.  The  motives  which 
influenced  the  Senate  in  the  rejection  of  Fishburn  do  not 
appear,  but  the  passage  which  has  been  quoted  from  Washing- 
ton's special  message  demonstrates  not  only  his  belief  in  the 
need  of  consultation  with  the  Senate  about  nominations,  but 
the  absolute  necessity  for  it  in  order  to  prevent  constant  fric- 
tion between  the  Senate  and  the  Executive.  This  case  un- 
doubtedly led,  therefore,  to  the  practice  which  has  been  con- 
tinued to  the  present  time  of  the  President  consulting  with 
Senators  in  regard  to  appointments.  As  the  Senate,  after  it 
has  confirmed  a  nomination,  becomes  equally  responsible  with 
the  President  for  the  appointment,  it  is  obvious  that  the  right 
of  consultation  under  the  Constitution,  which  has  already 
been  defined,  must  be  exercised  in  some  wray.  Thus  it  came 
about  that  informal  consultations  with  individual  Senators 
took  the  place  of  the  cumbrous  and  inconvenient  method  of 
consulting  the  Senate  as  a  body,  and  in  this  way  the  intent 
of  the  Constitution  has  been  carried  out.  Nothing,  therefore, 
is  more  inept  than  to  criticise  a  President  because  he  consults 
the  Senators  from  a  State  in  regard  to  an  appointment  in  that 
State  or  from  it.  The  Senators  are  his  constitutional  ad- 
visers. In  some  way  he  must  consult  them,  and  it  is  impos- 
sible that  any  President  should  be  able  to  know  enough  about 


180  READINGS  IN  CIVIL  GOVERNMENT 

the  men  in  forty-five  States  to  enable  him  to  appoint  intelli- 
gently unless  he  could  avail  himself  of  the  knowledge  of  those 
who  represent  the  several  States.  The  consultation  of  Sena- 
tors by  the  President,  therefore,  in  regard  to  appointments, 
is  nothing  more  than  carrying  out  the  intent  of  the  Constitu- 
tion in  the  manner  which  practice  has  shown  to  be  the  only 
convenient  one.  The  influence  of  the  Senate  in  making  ap- 
pointments is  not  increased  thereby,  except  so  far  as  the 
multiplication  of  officers  has  made  it  more  necessary  for  the 
President  to  receive  local  information  and  depend  for  it  upon 
the  Senators  more  than  was  essential  in  the  early  days.  All 
that  has  been  done  constitutionally  is  to  substitute  an  in- 
formal consultation  with  individual  Senators  for  the  consulta- 
tion of  the  Senate  as  a  body,  which  has  been  always  rec- 
ognized as  a  constitutional  right  in  the  simple  rule  already 
quoted.  .  .  . 

In  regard  to  the  other  branch  of  the  Senate's  executive 
functions,  the  treaty-making  power,  the  course  of  development 
has  been  much  the  same — consultation  of  individual  Senators, 
either  directly  by  the  President  or  through  the  Secretary  of 
State  by  means  of  communication  with  the  Committee  on 
Foreign  Relations,  having  been  substituted  for  the  old  plan 
of  counseling  beforehand  with  the  Senate  as  a  body.  The 
treaty-making  power  of  the  Senate  is  a  large  subject  .  .  . 
but  the  results  of  more  than  a  century  of  development  in  this 
direction  may  be  briefly  summed  up. 

The  Senate  has  the  right,  under  the  language  of  the  Con- 
stitution, to  advise  beforehand  that  the  negotiation  be  en- 
tered into,  or  the  reverse.  This  right  has  been  exercised  on 
two  or  three  occasions,  but  very  rarely,  and  has  usually  been 
allowed  to  fall  into  abeyance,  although  circumstances  may 
make  its  use  necessary  and  desirable  at  any  time.  The  Presi- 
dents have  from  time  to  time  consulted  the  Senate  prior  to 
negotiation,  and  this  right,  although  not  often  exercised,  has 
been  made  use  of  at  intervals  down  to  the  present  day.  The 
right  of  the  Senate  to  amend  has  been  always  freely  used  at 
all  periods  of  our  history,  and,  of  course,  will  continue  to  be 


THE  SENATE  181 

exercised,  because  it  is  the  only  method  by  which  the  Senate 
can  take  part  in  the  negotiations,  as  the  Constitution  in- 
tended it  to  do. 

This  summary  of  the  history  of  the  treaty-making  power  as 
exercised  by  the  Senate  shows  that  the  Senate  has  not  only  not 
sought  to  extend  its  power  over  treaties  unduly,  or  in  doubt- 
ful directions,  but  that  it  has  wisely  allowed  certain  undoubted 
privileges  to  fall  into  abeyance  and  has  contented  itself  with 
discussion  and  amendment  when  a  treaty  came  before  it,  and 
with  the  informal  consultations  which  it  has  been  the  prac- 
tice of  most  Presidents  to  extend  to  members  of  the  Senate  in 
regard  to  our  foreign  relations. 

This  covers  the  relations  of  the  Senate  with  the  Executive 
in  regard  to  its  executive  functions  of  confirming  nomina- 
tions and  of  ratifying  treaties.  It  only  remains  now  to  con- 
sider the  relations  of  the  Senate  with  the  House,  and  there 
is  only  one  point  in  the  Constitution  where  the  powers  of 
either  house  are  restrained.  That  is  the  clause  which  gives 
to  the  House  of  Kepresentatives  the  sole  right  to  originate 
bills  to  raise  revenue.  In  all  other  respects  the  Senate  and 
the  House  are  upon  an  absolute  legislative  equality.  This 
right  of  the  House  thus  given  in  the  Constitution  has,  of 
course,  never  been  questioned,  nor  has  the  right  of  the  Senate 
to  make  unlimited  amendments  to  bills  to  raise  revenue  ever 
been  successfully  contested,  but  the  practice  has  grown  up 
of  allowing  the  House  to  originate  not  only  bills  to  raise 
revenue  but  also  the  great  appropriation  bills  which  pro- 
vide for  the  expenditure  of  the  public  money.  The  Sen- 
ate has  an  undoubted  right  to  originate  any  appropriation 
bill,  large  or  small,  and  it  frequently  passes  bills  carrying  an 
appropriation  for  some  single  and  specific  object,  such  as  the 
construction  of  a  light-house  or  of  a  public  building,  but  at 
the  same  time  the  Senate  has,  without  serious  resistance,  con- 
ceded to  the  House  the  sole  right  to  originate  the  great  ap- 
propriation bills,  although  its  own  right  to  originate  such 
measures  is  the  same  as  that  of  the  lower  branch.  That  this 
is  a  wise  practice  I  think  few  persons  will  doubt,  but  it  cer- 


182  READINGS  IN  CIVIL  GOVERNMENT 

tainly  does  not  show  on  the  part  of  the  Senate  a  desire  to 
usurp  authority. 

Thus  it  appears  that  both  in  relation  to  the  Executive  and 
the  House  of  Representatives  the  Senate  has  not  sought  to 
extend  its  constitutional  powers,  but  has,  on  the  contrary, 
refrained  from  the  exercise  of  some  undoubted  rights  and  has 
allowed  others  to  rest  in  abeyance.  Yet  there  can  be  no  doubt 
that  it  is  equally  true  that  the  power  of  the  Senate  has  grown 
enormously  in  the  one  hundred  years  and  more  of  our  his- 
tory. The  influence  of  the  Senate  in  legislation  and  in  all 
departments  of  government  is  much  greater  than  at  the  be- 
ginning, and  far  exceeds  that  of  the  House,  but  this  is  not  due 
to  any  usurpations  on  the  part  of  the  Senate,  as  has  been 
shown  by  the  preceding  review  of  the  history  of  its  constitu- 
tional functions.  The  increase  in  the  importance,  weight, 
and  power  of  the  Senate  is  due  primarily  to  its  inherent 
strength,  and  this  strength  rests  upon  the  manner  in  which  it 
was  endowed  by  the  framers  of  the  Constitution.  With  equal 
authority  in  legislation,  with  executive  functions  which  in- 
volve all  appointments  to  office  and  all  our  foreign  relations, 
it  was  inevitable  that  as  the  country  and  the  government 
grew  the  power  of  the  Senate  should  increase  more  largely 
than  that  of  any  other  branch  of  the  government,  for  the 
simple  reason  that  its  original  opportunity  for  growth  was 
greater.  This  increase  of  power  in  the  Senate  has  undoubt- 
edly been  stimulated  by  the  fact  that  the  rigid  rules  neces- 
sary in  the  lower  branch  had  prevented  the  House  from  doing 
many  important  things  which  the  Senate,  with  its  easy 
methods  of  conducting  business,  could  readily  take  up.  Many 
matters  from  which  the  House  excluded  itself  by  its  own 
rules  were  in  this  way  thrown  into  the  possession  of  the  Sen- 
ate, which  is  a  sure  method  of  enhancing  legislative  power. 
In  the  same  way,  although  the  support  of  the  entire  Congress 
is  necessary  to  a  successful  administration,  no  President  can 
get  on  without  the  Senate,  even  if  he  has  the  House  with  him, 
because  it  is  always  within  the  power  of  the  Senate,  if  it  is 
so  disposed,  to  namper  the  Executive  without  going  into  open 


THE  SENATE  183 

opposition,  both  in  administration,  through  the  officers,  and 
in  foreign  relations,  through  its  treaty-making  power.  Very 
naturally,  therefore,  Presidents  are  always  anxious  to  be  on 
the  best  terms  with  the  Senators,  who  are  their  constitutional 
advisers,  and  for  this  reason  as  the  Executive  power  has  ex- 
panded with  the  growth  of  the  nation  and  the  extension  of 
the  government,  the  power  of  the  Senate  has  gone  hand  in 
hand  with  it. 

The  Senate  is  to-day  the  most  powerful  single  chamber  in 
any  legislative  body  in  the  world,  but  this  power,  which  is 
shown  daily  by  the  wide  attention  to  all  that  is  said  and  done 
in  the  Senate  of  the  United  States,  is  not  the  product  of  self- 
ish and  cunning  usurpations  on  the  part  of  an  ambitious  body. 
It  is  due  to  the  original  constitution  of  the  Senate,  to  the 
fact  that  the  Senate  represents  States,  to  the  powers  conferred 
upon  it  at  the  outset  by  the  makers  of  the  Constitution,  to  its 
permanency  of  organization,  and  to  the  combination  of  legis- 
lative, executive,  and  judicial  functions,  which  set  it  apart 
from  all  other  legislative  bodies.  Without  the  assent  of  the 
Senate  no  bill  can  become  law,  no  office  can  be  filled,  no  treaty 
ratified. 

ADDITIONAL  READINGS 

1 — The  Powers  of  the  Senate,  Reinsch,  P.,  American  Legisla- 
tures and  Legislative  Methods,  86-106. 

2 — The  Senate,  Its  Working  and  Influence,  Bryce,  J.,  Ameri- 
can Commonwealth,  I,  111-23. 

3 — The  Senatorial  Caucus  and  Leadership,  McConachie,  L.  G.t 
Congressional  Committees,  338-45. 

4 — The  United  States  Senate,  Everett,  Wm.,  Atlantic  Monthly, 
XCVII,  157-66. 

5 — The  Treaty-Making  Power  of  the  Senate,  Bacon,  A.  0., 
North  American  Review,  502—12. 

6 — The  Overshadowing  Senate,  Nelson,  H.  L.,  Century  Maga- 
zine, XLIII,  499-509. 

7 — Election  of  United  States  Senators  by  Popular  Vote,  Bur- 
gess, J.  W.,  Political  Science  Quarterly,  XVII,  650-63. 

8 — Popular  Control  of  Senatorial  Elections,  Haynes,  G.  H., 
Political  Science  Quarterly,  XX,  577-93. 


CHAPTER  IX 
THE  PRESIDENCY 

39.  DEFECTS  IN  THE  ELECTORAL  SYSTEM. 

The  method  of  election  of  the  President  and  Vice-President  caused 
many  exciting  debates  in  the  Federal  Convention.  The  plan  finally 
agreed  upon  was  believed  to  be  the  nearest  approach  to  perfection 
to  be  found  in  the  Constitution.  -  And  yet  no  provision  in  the  Con- 
stitution has  more  utterly  failed  to  accomplish  the  purpose  of  its 
framers.  Mr.  J.  H.  Dougherty  thus  describes  the  practical  work- 
ing of  the  electoral  system  and  suggests  a  possible  remedy  for  its 
defects: 

Whatever  the  origin  of  the  electoral  plan,  its  failure  in 
purpose  is  clear.  The  idea  of  the  elector  as  an  over-lord  is  not 
consonant  with  democratic  institutions,  and  our  institutions 
while  not  democratic  at  the  outset  have  become  increasingly 
so.  Nominally  free  in  Washington's  day,  the  electors  never 
dreamed  of  resisting  the  sentiment  that  universally  acclaimed 
the  father  of  his  country  the  first  President  of  the  new 
Union.  In  Adams'  time  there  were  one  or  two  electors  who 
asserted  their  constitutional  prerogatives,  but  the  majority 
obeyed  the  desires  of  party  leaders,  and  since  that  period  the 
search  is  vain  for  the  theoretical  elector  of  the  Constitution. 
Party  spirit  has  deposed  him  and  made  him  its  tool.  That 
elector  would  render  himself  infamous  who,  accepting  the 
office  upon  the  only  possible  conditions  upon  which  it  would 
be  conferred — which  tacitly  bind  him  to  obey  his  party's  be- 
hests— should  employ  it  to  defeat  the  will  of  those  who  placed 
him  in  it.  An  accomplished  jurist  and  author,  and  a  student 
under  Joseph  Story,  writing  in  the  North  American  Review 
for  January,  1877,  made  the  following  striking  reflections 

184 


THE  PRESIDENCY  185 

upon  the  remarkably  scrupulous  fidelity  to  a  merely  tacit  ob- 
ligation always  evinced  by  the  electoral  colleges : 

"For  seventy-six  years,  that  is,  for  nineteen  presidential  elections, 
no  member  of  an  electoral  college  has  failed  to  vote  for  the  candidate 
designated  by  his  party,  or  been  subjected  to  the  imputation  of  be- 
ing open  to  any  influences  in  that  direction.  Yet  the  party  takes 
from  the  elector  no  written  pledge,  and  indeed  exacts  no  oral  pledge. 
From  the  fact  that  he  is  nominated  by  his  party  as  a  presidential 
elector,  the  party  having  first  designated  whom  it  wishes  to  have 
made  President,  he  comes  under  the  implied  obligation  to  vote  for 
that  candidate,  and  to  disregard  the  obligation  the  Constitution  in- 
tends to  put  upon  him  of  selecting  and  voting  for  a  President  ac- 
cording to  his  own  judgment.  The  number  of  electors  who  during 
this  period  have  so  kept  faith  with  their  parties  must  have  been  be- 
tween three  and  four  thousand." 

Nevertheless  there  is  the  ever  present  possibility  of  a  breach 
of  trust.  Treason  may  seem  a  remote  contingency,  yet  in  a 
time  of  great  temptation  there  might  come  an  electoral  Bene- 
dict Arnold.  It  is  in  the  face  of  all  logic  and  experience 
to  infer  that,  because  no  traitor  has  yet  been  discovered,  a 
temptation  of  such  peculiar  subtlety  will  forever  remain 
without  a  victim.  The  possible  methods  of  disloyalty  are 
so  occult  that  it  cannot  always  be  known  whether  an  elector 
has  kept  faith.  In  States  where  several  electors  represent- 
ing different  parties  have  been  appointed,  an  elector  or  a 
number  of  electors  might  resign,  and  thus  give  to  the 
remaining  members  of  the  college  the  opportunity  to  fill  the 
vacancies  with  their  political  friends;  or  a  fraud  might  be 
perpetrated  that  would  seem  a  mistake,  by  a  failure  to  make 
a  proper  certificate  or  to  obtain  the  prescribed  authentica- 
tion ;  or  the  transmission  of  the  return  required  by  the  Con- 
stitution might  in  some  manner  be  thwarted. 

The  elector  in  the  constitutional  sense  is  an  abortive  organ- 
ism. He  has  no  function  to  fulfill.  But  he  is  not  merely 
functionless,  he  is  dangerous.  It  is  as  true  in  the  moral  as 
it  is  in  the  material  realm  that  any  mechanism  or  organ  that 
has  ceased  to  perform  its  function  is  sure  to  work  mis- 


186  READINGS  IN  CIVIL  GOVERNMENT 

chief,  if  not  positive  detriment.  The  famous  phrase  of  the 
Constitution  "the  votes  shall  then  be  counted"  has  been 
like  an  apple  of  discord  almost  since  the  beginning  of  the 
Government.  The  authors  of  the  Constitution  probably 
intended  the  president  of  the  Senate  to  do  the  counting, 
for  in  their  eyes  it  was  to  be  a  simple  computation  or 
enumeration.  As  the  fathers  erred  in  failing  to  gauge  the 
strength  of  the  nascent  democratic  impulse,  or  in  supposing 
that  democracy  would  consent  to  renounce  its  prerogative 
of  choosing  a  President,  so  they  were  equally  mistaken  in 
their  assumption  that  counting  would  always  remain  a  purely 
arithmetical  process.  It  derogates  little  from  their  just 
claims  to  reverence  to  declare  this  portion  of  the  noble 
edifice  of  the  Constitution  incongruous  with  the  rest  of  the 
structure.  .  .  . 

In  these  circumstances,  the  dictate  of  practical  wisdom 
is  to  abolish  the  letter  of  the  system  altogether — which  might 
easily  be  done  by  a  single  amendment  to  the  Constitution. 
If  the  people  of  the  United  States  entertain  to-day  the 
repugnance  to  a  vote  for  President  and  Vice-President  by 
the  people  as  a  whole  that  was  felt  by  the  representatives 
of  the  small  States  in  the  convention  of  1787,  the  theory  of 
electoral  representation  might  be  preserved,  and  yet  the  peril- 
ous electoral  machinery  abolished.  Each  State  might  still 
have  the  electoral  votes  to  which  its  representation  in  the 
United  States  Senate  and  in  the  House  entitles  it  under  the 
present  Constitution.  The  useless  and  antiquated  mechan- 
ism should,  however,  be  discarded  and  the  State,  by  an 
amendment  to  the  national  Constitution,  be  declared  entitled 
upon  the  authoritative  canvass  of  the  popular  vote  to  its 
proportional  vote  for  President  and  Vice-President  in  a  ficti- 
tious electoral  college.  The  office  of  elector  having  dis- 
appeared, there  would  be  no  occasion  for  electors  to  convene 
in  a  State  capital  for  the  purpose  of  casting  the  vote  of  the 
State,  and  the  State  would  be  saved  the  attendant  <>xprn«\ 
and  the  possible  loss  of  its  vote  if,  for  example,  as  happened 
in  Wisconsin  in  1857,  the  electors  should  be  prevented  by 


THE  PRESIDENCY  187 

an  accident  from  convening  on  the  day  fixed  by  act  of  Con- 
gress. All  contention  over  the  ineligibility  of  electors  would 
cease,  and  such  an  imbroglio  as  arose  over  the  appointment 
of  electors  in  Oregon  in  1877  would  never  vex  the  nation 
again.  We  should  not,  it  is  true,  be  able  by  this  change  to 
prevent  the  recurrence  of  such  a  disgraceful  proceeding  as 
a  fraudulent  and  iniquitous  determination  of  a  State  can- 
vassing board,  subversive  of  the  actual  popular  vote,  but  we 
should  get  rid  of  many  perils  and  perplexities  of  the  present 
system.  Or,  if  the  people  desired  to  return  to  the  district 
system  so  largely  in  favor  at  an  earlier  epoch  of  our  history, 
that  could  be  as  readily  accomplished.  The  district  system 
of  voting  was  the  essential  change  embodied  in  the  amend- 
ments to  the  Constitution  unsuccessfully  proposed  at  differ- 
ent times  by  Benton,  Van  Buren,  McDuffie,  Morton,  and 
Sumner. 

The  Constitution  provides  that  "the  Congress  may  deter- 
mine the  time  of  choosing  the  electors  and  the  day  on  which 
they  shall  give  their  votes,  which  day  shall  be  the  same 
throughout  the  United  States."  The  difficulty  which  befell 
the  Wisconsin  electors  in  1857  has  been  more  than  once  men- 
tioned in  these  pages.  Fortunately,  the  vote  of  Wisconsin 
was  not  decisive  of  the  result,  as  Buchanan's  election  was 
assured  whether  the  vote  of  that  State  was  counted  or 
rejected.  The  fathers  wisely  determined  that  the  electoral 
colleges  should  meet  on  the  same  day,  in  order  to  forestall 
intrigues  and  machinations.  But  the  vote  of  a  State  might 
be  prevented  by  "act  of  God"  on  the  appointed  day  and  that 
vote  might  be  essential  to  elect  a  candidate.  While  the  Act 
of  1845  allows  the  States  to  authorize  their  electors  to  fill 
vacancies  in  the  respective  electoral  colleges,  it  is  not  alto- 
gether unreasonable  to  imagine  that  all  the  electors  of  a 
State  might  perish  in  a  common  disaster,  in  which  event 
there  would  be  no  survivor  or  survivors  to  elect  members  to 
the  vacant  seats  in  the  board.  .  .  . 

In  1824  the  electors  were  chosen  by  popular  vote,  by  dis- 
tricts and  by  general  ticket,  in  all  the  States  excepting  Dela- 


188  HEADINGS  IN  CIVIL  GOVERNMENT 

ware,  Georgia,  Louisiana,  New  York,  South  Carolina,  and 
Vermont,  where  they  were  still  chosen  by  the  Legislature. 
On  March  13,  1825,  the  Legislature  of  New  York  established 
the  district  system,  but  not  until  it  had  first  polled  the  senti- 
ment of  the  people  by  formally  submitting  the  question  to 
them.  ^  The  answer  was  so  unequivocal  as  to  dispel  all  doubt 
of  the  popular  desire  for  an  election  by  districts.  The  act 
provided  for  the  appointment  of  one  of  the  thirty-four  presi- 
dential electors  in  each  district  by  the  voters,  and  authorized 
the  electoral  college  not  only  to  supply  vacancies  in  its  body, 
but  also  to  appoint  two  additional  electors  corresponding 
with  the  two  Senators  from  the  State  in  the  Senate  of  the 
United  States.  This  law,  upon  the  recommendation  of  Van 
Buren,  then  governor,  was  superseded  in  1829  by  the  law 
establishing  the  general-ticket  system.  In  1828,  Delaware 
and  South  Carolina  alone  adhered  to  the  legislative  system. 
After  1832  electors  were  chosen  by  general  ticket  in  all  the 
States  excepting  South  Carolina,  where  the  Legislature  chose 
them  up  to  and  including  1860.  The  legislative  mode  of 
choice  was  adopted  by  Florida  in  1868,  and  by  Colorado  in 
1876,  as  prescribed  by  section  19  of  the  schedule  to  the  con- 
stitution of  the  State,  which  was  admitted  into  the  Union 
August  1,  1876. 

The  abandonment  of  the  district  became  inevitable  as  the 
few  States  which  had  employed  it  began  to  realize  the  dis- 
advantages they  suffered  in  comparison  with  the  States  that 
had  adopted  the  general-ticket  system.  Since  the  vote  of  the 
State,  when  cast  in  solido,  swung  the  whole  of  its  electoral 
strength  in  favor  of  the  candidate  of  one  party  or  the  other, 
every  other  State  in  which  that  party  was  ordinarily  dom- 
inant would  naturally  follow  such  example  and  thereby  en- 
hance the  influence  and  importance  of  its  leaders  in  party 
matters,  and  add  to  the  prestige  of  the  State  itself. 
States  under  the  control  of  the  opposition  could  not  afford 
to  give  their  political  adversaries  such  odds  as  would  result 
from  the  division  of  their  electoral  vote  by  the  continuance 
of  the  district  system,  while  their  enemies  were  casting  their 


THE  PRESIDENCY  189 

electoral  votes  en  bloc.  Divide  et  impera  was  a  maxim  of 
no  application  to  such  contests.  Hence  the  rapid  adoption  of 
the  general-ticket  system,  which  amounts  in  reality  to  a  poll 
of  States,  and  in  which  the  voice  of  the  minority  is  sup- 
pressed. One  unhappy  consequence  is  the  creation  in  every 
State  of  a  class  of  political  leaders,  often  persons  occupying 
no  official  place,  whose  influence  in  achieving  party  successes 
has  made  them  potent  in  party  councils  and  party  appoint- 
ments.  .  .  . 

One  evil  result  of  the  general-ticket  system  is  its  destruc- 
tion of  all  incentive  to  the  development  of  an  opposition 
party  organization  in  States  in  which  one  of  the  two  great 
parties  is  constantly  predominant.  The  district  system  or 
an  apportionment  system  would  probably  have  led  to  the 
formation  of  an  antagonistic  party  and  to  active  political 
work  in  districts  which  seemed  to  be  auspicious  fields  of 
operation.  In  many  of  the  Southern  States  in  the  decades 
preceding  the  Civil  War  there  was  no  Whig  or  Republican 
organization,  because  such  an  organization  had  no  chance  of 
success  in  the  State  at  large.  The  educational  influence  of 
discussion  in  district  centres  was  altogether  sacrificed  and  a 
potent  factor  against  the  tyranny  of  a  majority  party  utterly 
lost.  In  a  government  by  discussion  (to  borrow  a  phrase 
from  the  late  Walter  Bagehot)  social  and  political  develop- 
ment is  seriously  retarded;  the  injury  which  a  community 
thus  persistently  dominated  by  one  party  sustains  is  almost 
incalculable.  The  baneful  consequences  of  the  general-ticket 
system  were  witnessed  in  less  degree,  during  the  free  silver 
campaigns,  in  communities  where  the  advocates  of  the  gold 
standard,  however  numerous,  had  no  chance  of  exerting  a 
direct  influence  upon  the  choice  of  presidential  electors,  be- 
cause they  were  out-voted  by  the  friends  of  silver.  A  system 
of  voting  that  would  permit  the  expression  of  minority 
views  and  hence  give  a  more  faithful  picture  of  opinion 
through  a  State,  would  have  more  promptly  checked  unsound 
tendencies  in  finance.  Government  by  majority  was  never 
intended  to  nullify  minority  sentiment;  the  general-ticket 


190  READINGS  IN  CIVIL  GOVERNMENT 

system  not  only  renders  such  sentiment  inactive,  but  tends 
altogether  to  repress  it. 

In  States  in  which  opposing  party  organizations  flourish 
and  where  each  is  alternately  successful,  what  have  been 
styled  the  " close''  States,  the  temptation  to  fraud  receives 
powerful  accession  under  the  general-ticket  system.  Almost 
every  critic  of  the  electoral  system  has  commented  upon  this 
obvious  danger.  A  fraudulent  ballot  cast  at  a  presidential 
election  in  New  York,  said  an  able  writer,  in  1873, 

"affects  thirty-five  electors,  or  nearly  one-fifth  of  the  whole  number 
requisite  to  the  choice  of  a  President.  In  Rhode  Island  such  a  ballot 
affects  only  three  electors,  or  less  than  one-sixtieth  of  a  majority  of 
the  whole  electoral  college.  Here  is  a  direct  bounty  on  the  con- 
centration of  fraudulent  efforts  of  all  kinds  in  the  large  States, 
whereby  not  only  a  vicious  influence  of  fearful  intensity  is  thrown 
into  the  scale  of  a  national  election,  but  all  the  local  elements  of 
corruption,  ever  sufficiently  formidable  in  our  most  populous  States, 
are  powerfully  reinforced;" 

Whereas  "under  the  district  system,  on  the  other  hand,  a 
fraud  upon  the  ballot  box  can  affect  but  one  elector,  unless 
two  electors  at  large  should  be  chosen  in  each  State,  in  which 
case  but  three  electors  at  the  most  could  be  affected  by  a 
given  fraud." 

It  is  hard  to  conceive  of  a  system  more  easily  adapted 
than  the  general-ticket  system  to  the  successful  perpetration 
of  fraud  or  offering  more  seductive  inducements  to  its  e« 
mission.  The  closer  the  vote  of  a  State,  the  more  bitter  is 
the  struggle  for  party  supremacy ;  the  keener  the  competition 
for  success,  the  more  insidious  is  the  allurement  to  fraud  and 
the  easier  its  accomplishment,  because  it  is  necessary  to 
purchase  only  a  few  voters  in  a  particular  section  carefully 
chosen  as  the  most  promising  field  of  nefarious  operations. 
Thus  the  system  framed  by  the  convention  of  1787,  as  now 
operated  under  the  general-ticket  plan,  is  doubly  vulnerable 
to  the  attacks  of  fraud  and  corruption.  Electors  may  be 
bribed.  Certainly  the  electoral  system  offers  leonine  tempta- 
tion to  bribery,  and  the  general-ticket  plan  renders  defeat 


THE  PRESIDENCY  191 

of  the  popular  will  by  the  fraudulent  purchase  of  voters  in 
a  close  State  a  simple  and  easy  achievement  for  astute  and 
dishonest  politicians. 

The  densely  populated  States,  upon  the  general-ticket 
system,  constantly  tend  to  nullify  the  vote  of  the  smaller  com- 
monwealths. It  has  several  times  happened  in  the  history 
of  the  nation  that  the  State  of  New  York  has  been  the  de- 
termining factor  in  a  presidential  campaign — the  "pivotal" 
State ;  in  fact,  with  the  exception  of  the  campaigns  of  1868 
and  1876,  no  election  since  1856  has  gone  in  favor  of  a  party 
that  has  not  carried  New  York.  The  tendency  which  has 
been  so  marked  for  two  generations,  and  is  increasingly 
evident,  towards  the  concentration  of  people  in  large  munic- 
ipalities, will  make  such  States  even  more  influential  in  the 
future,  their  big  electoral  vote  more  and  more  decisive,  the 
temptation  to  fraud  more  seductive,  and  the  profit  from  its 
successful  perpetuation  more  certain.  The  smaller  States  in 
self-defense  should  co-operate  to  bring  about  the  adoption  of 
a  juster  system.  If  their  influence  is  to  be  preserved,  their 
remonstrance  against  the  present  method  should  be  emphatic. 
New  York  to-day  wields  thirty-nine  electoral  votes,  which  is 
the  equivalent  of  thirteen  of  the  smallest  States,  and  if,  under 
the  system  at  present  in  vogue,  a  transferred  vote  of  five  to 
six  hundred  will  place  it  in  the  Democratic  or  the  Repub- 
lican column — and  no  greater  change  would  have  taken  the 
State  from  Cleveland  and  given  it  to  Blaine  in  1884 — the 
incentive  to  prostitution  and  abuse  of  the  suffrage  could  not 
be  rendered  stronger;  and  even  in  an  ideal  community, 
where  the  purity  of  the  ballot-box  is  untarnished,  the  vote  of 
the  big  State,  like  that  of  the  large  stockholder,  counts 
rather  in  a  geometrical  than  an  arithmetrical  progression.  A 
plurality  or  majority  in  one  section  may,  it  is  true,  at  times 
be  counteracted  by  one  in  another  section,  and  thus  the  net 
result  be  a  rude  approximation  to  fairness,  taking  the  coun- 
try as  a  whole;  but  this  theory  of  averages  may  not  work 
constantly,  and  the  steady  suppression  of  minority  conviction 
in  a  State  is  an  undisputed  evil. 


192  READINGS  IN  CIVIL  GOVERNMENT 


40.   PARLIAMENTARY   VS.   PRESIDENTIAL   GOVERNMENT. 

Under  the  Articles  of  Confederation  the  United  States  had  no 
President — no  distinct  executive  department.  All  the  power  and 
functions  of  the  central  government  were  exercised  by  the  Congress. 
When  the  Convention  met  which  framed  the  new  Constitution  it  was 
soon  decided  to  change  this  and  create  three  separate  departments, 
the  legislative,  the  executive  and  the  judicial.  But  the  question  as 
to  the  proper  relations  between  these  departments  was  not  so  easily 
settled.  Should  the  executive  department  be  dependent  upon  and 
subject  to  the  control  of  the  legislature,  or  should  it  be  an  entirely 
independent  and  coordinate  branch  of  the  government?  The  signifi- 
cance of  these  differences  and  the  character  of  the  executive  depart- 
ment finally  agreed  upon  are  clearly  stated  by  Professor  J.  A.  Wood- 
burn: 

The  original  " Randolph  Plan,"  supposed  to  contain  the 
backbone  and  skeleton  of  the  Constitution,  proposed  that  a 
National  Executive  be  instituted  to  be  chosen  by  the  National 
Legislature.  It  was  thought  by  some,  notably  by  Roger 
Sherman  of  Connecticut,  that  the  Executive  should  be 
nothing  more  than  an  institution  for  carrying  the  will  of 
the  legislature  inte  effect;  that  it  should  be  appointed  by, 
and  be  accountable  to,  the  legislature.  The  legislature  was 
to  be  "the  depository  of  the  supreme  will  of  the  society"; 
to  make  the  Executive  independent  of  the  legislature  was  of 
the  very  essence  of  tyranny.  The  legislature  was  the  best 
judge  of  the  business  which  ought  to  be  committed  to  the 
Executive  department,  and,  consequently,  of  the  number 
necessary  to  do  this  business.  Therefore  Sherman  would  not 
have  the  number  of  the  Executive  department  fixed,  but  he 
would  leave  the  legislature  free  to  appoint  one  or  more  as 
experience  might  dictate;  he  would  have  the  Executive  en- 
tirely dependent  upon  the  legislature.  By  this  theory  the 
legislature  is  the  representative  head  of  the  body  politic; 
it  thinks  and  wills  and  decides.  The  Executive  is  but  the 
hands  and  arms  and  feet  to  execute  the  will  and  decision 
arrived  at. 

These  views  as  to  the  relation  between  the  executive  and 


THE  PEESIDENCY  193 

the  legislative  branches  of  government  serve  to  suggest  the 
difference  between  the  Parliamentary  and  the  Presidential 
system  of  government — between  the  English  system  and  the 
American.  When  governments  are  classified  according  to 
the  relation  of  the  legislature  to  the  Executive,  they  are 
either  Parliamentary  or  Presidential.  A  Presidential  Gov- 
ernment, like  ours,  is  the  form  in  which  the  Executive  is 
independent  of  the  legislature.  Our  President  is  independ- 
ent of  Congress  both  in  tenure  and  prerogative.  Congress 
does  not  elect  the  President  (except  in  an  emergency),  nor 
can  it  shorten  his  term,  nor  take  away  his  constitutional 
powers,  nor  in  any  way  remove  him,  except  by  impeachment 
for  high  crimes  and  misdemeanors.  He  was  not  made  en- 
tirely independent  of  the  legislature,  but  as  nearly  so  as  could 
be — as  nearly  as  would  be  safe  for  freedom  and  good  govern- 
ment. 

Parliamentary  Government  is  the  form  in  which  the  Execu- 
tive is  elected  by  and  is  dependent  upon  the  legislature,  in 
which  the  legislature  has  "complete  control  of  the  adminis- 
tration law. ' '  Under  this  form  the  legislature  is  the  supreme 
determining  will  in  the  State,  and  the  Executive  is  the  agency 
to  carry  out  that  will.  The  legislature  decides,  the  Execu- 
tive acts.  Under  this  form  of  government  the  legislature 
creates  the  Executive  and  terminates  it  at  pleasure,  and  the 
Executive  can  undertake  no  course  and  exercise  no  prerog- 
ative not  approved  by  the  legislature.  Of  course  such  con- 
trol of  the  Executive  by  the  legislature  implies  either  that 
the  legislature  consists  of  only  one  house,  or  that  the  houses 
are  not  co-ordinate — that  one  is  dominant  in  power  and  con- 
trol over  the  other.  For  instance,  in  England  under  Parlia- 
mentary government,  the  Commons  is  the  chief  power  in  the 
state,  the  dominant  branch  of  the  legislature,  and  as  such  it 
is  the  source  of  the  Executive.  The  Ministry,  or  Cabinet, 
which  is  the  executive  branch  of  the  Government — usually 
called  "the  Government" — is  created  by  the  party  majority 
in  the  Commons;  this  Executive  is  responsible  for  its  acts 
and  policies  to  the  Commons.  If  at  any  time  a  vote  is  passed 
13 


194  READINGS  IN  CIVIL  GOVERNMENT 

in  the  Commons  adverse  to  the  Government  or  the  Cabinet, 
the  Ministry  must  either  resign  or  dissolve  Parliament  and 
appeal  to  the  country.  If,  in  the  election  which  follows,  the 
people  send  up  a  Commons  still  adverse  to  the  Ministry,  the 
Ministry  must  resign  and  the  Queen  must  call  the  leader  of 
the  opposition  party  to  form  a  new  Cabinet.  Refusal  on  the 
part  of  the  Ministry  to  resign  and  to  permit  the  formation 
of  a  new  Cabinet  in  harmony  with  the  majority  in  the  Com- 
mons, or  refusal  of  the  Queen  so  to  reorganize  the  Ministry 
according  to  the  mandate  of  the  election  would  be  equivalent 
to  usurpation  and  revolution  and  might  cause  violent  up- 
heaval and  resistance.  The  Commons,  or  the  dominant 
branch  of  the  legislature,  must  control  the  Executive  policy 
and  acts  of  the  Government.  This  is  called  Parliamentary 
government.  It  is  also  called  Cabinet  or  Ministerial  gor*  m- 
ment,  in  contradistinction  to  Presidential  government. 

Such  is  the  theory  of  Cabinet  government.  But  the 
practice  of  the  system  does  not  always  correspond  to  the 
theory.  It  is  to  be  remembered  that  Parliamentary  govern- 
ment is  a  growth.  It  was  never  designed,  or  created,  or 
established  at  any  one  time.  It  is  a  product  of  evolution. 
It  grew  from  age  to  age.  It  changed  from  one  generation 
to  another,  and  has  never  been  quite  the  same  in  its  practical 
operation  in  any  two  periods  of  its  history.  In  earlier  times 
it  was  a  privy  council  to  the  king,  subject  chiefly  to  his  will 
— a  kind  of  royal  cabal.  Later,  under  the  Hanoverian 
kings,  it  became  an  agency  of  the  Whig  oligarchy — the  rule 
of  a  few  powerful  families  in  the  realm  who  controlled 
enough  boroughs  to  enable  them  to  control  the  Commons. 
George  III  attempted  to  make  it  an  instrument  through 
which  the  king  should  again  actually  govern.  George  III 
did  not  attempt  to  defy  the  Commons  or  to  govern  without 
it,  as  Charles  I  had  done ;  but  by  the  corruption  of  boroughs, 
by  means  of  his  pensioners  and  placemen,  he  sought  to  con- 
trol the  Commons.  The  " King's  friends "  were  so  numerous 
in  Parliament  that  no  party  Minister  could  hold  his  placo.  or 


THE  PEESIDENCY  195 

maintain  a  government,  contrary  to  the  king's  will.  But 
in  spite  of  this  last  effort  of  a  king  to  govern  as  well  as  to 
reign,  Parliamentary  government  was  maintained  against  the 
royal  prerogative,  and  the  Cabinet  became,  as  it  is  now  in 
theory,  the  Executive  agent  of  the  Commons.  The  Cabinet 
originates  and  proposes  measures;  the  Commons  is  supposed 
to  deliberate  on  these,  to  discuss  them,  and  to  decide  on  the 
proposals,  accepting  or  rejecting  as  the  sense  of  the  Com- 
mons is  pleased.  But  in  practice  to-day  the  Cabinet  system 
presents  another  aspect.  It  is  not  the  Commons  which 
actually  determines  on  measures,  so  much  as  the  Cabinet 
itself.  It  is  rare  that  a  "Government"  bill  is  discussed. 
The  department  that  has  it  in  charge  generally  forces  the 
measure  through  by  applying  the  party  majority  to  its  sup- 
port. Criticism  is  silenced  by  the  knowledge  that  the  meas- 
ure is  the  proposal  of  the  Ministry  whom  the  majority  were 
sent  there  to  support.  A  private  member  cannot  obtain  an 
opportunity  for  the  discussion  of  a  bill  unless  the  Govern- 
ment wishes  to  have  it  so.  Financial  debates  on  the  budget 
are  becoming  more  and  more  formal  every  year,  the  Treasury 
department  fixing  the  sum  to  be  spent,  and  spending  it,  while 
the  House  concurs  in  practical  silence.  "In  all  departments 
of  political  life  the  Cabinet  governs,  and  not  the  House  of 
Commons,  which,  instead  of  governing,  confines  itself  to  ap- 
pointing, dismissing,  and,  on  occasion,  silently  influencing  the 
Cabinet."  This  has  been  called  a  gradual  and  "unconscious 
revolution."  The  talking  Parliament  had  talked  too  much, 
until  legislative  business  had  become  congested,  and  delibera- 
tion and  debate  came  to  be  regarded  as  an  intolerable  inter- 
ruption to  the  serious  business  of  the  state,  until  now  we 
have  "Parliament  practically  controlled,  guided  and,  in  a 
sense,  superseded  by  what  was  once  its  executive  committee." 
While  practice  has  made  this  accretion  of  power  to  the 
Cabinet  a  natural  process,  it  is  still  true  that  the  Cabinet  is 
responsible,  and  it  may  be  dismissed  at  any  time  if  it  goes 
contrary  to  the  prevailing  opinion  of  the  nation  as  repre- 


196  EEADINGS  IN  CIVIL  GOVERNMENT 

sented  in  the  Commons.  The  Cabinet  is  still  merely  the 
agency  through  which  the  democratic  power  of  the  nation  is 
exercised. 

Now  if  the  views  expressed  by  Roger  Sherman  in  the  Con- 
stitutional Convention  had  prevailed,  we  should  have  had  the 
English  system  of  the  responsible  Ministry.  Sherman  was 
thinking  of  the  Executive  not  as  one  person,  but  as  several — 
as  an  executive  committee  to  carry  out  the  governmental 
business  determined  upon — a  committee  appointed  by  Con- 
gress and  dischargeable  by  Congress.  This  would  have  made 
Congress  the  responsible  supreme  power  in  the  nation.  It 
would  have  closely  united  the  executive  and  the  legislative 
power  and  responsibility  in  one  body.  It  would  have  con- 
centrated the  powers  of  government  instead  of  separating 
them,  and  under  such  provision,  no  doubt,  something  like  the 
English  Cabinet  system  would  have  grown  up  in  America. 
It  would  have  tended  toward  a  more  direct  democracy  in 
the  Government — producing  a  government  more  quickly 
responding  to  popular  behests.  Instead  of  this  the  framers 
of  our  Constitution  established  the  separation  of  the  depart- 
ments of  government.  Each  department,  the  Executive  and 
the  Legislative,  has  its  source  in  the  people;  each  is  elected 
by  the  people  without  the  intervention  of  the  other;  each  has 
its  rights,  duties,  privileges,  and  prerogatives,  assigned  by 
the  Constitution,  and  for  the  performance  of  these  the  two 
departments  are  answerable,  not  to  each  other,  but  to  the  peo- 
ple directly,  and  each  is  supreme  under  the  Constitution  and 
the  sovereign  power  of  the  people  in  its  own  defined  sphere. 

41.   EXECUTIVE  SUPREMACY. 

The  theory  of  the  Presidential  form  of  government  which  our  Con- 
stitution establishes  is  that  the  executive  and  legislative  depart- 
ments shall  be  separate  and  distinct.  How  has  this  worked  out  in 
practice?  Have  the  two  departments  remained  as  distinct  in  fact 
as  they  are  supposed  to  be  in  theory?  Mr.  James  T.  Young  dis- 
cusses this  subject  in  the  following  selection:  [1904]. 

Twenty  years  ago  the  author  of  "Congressional  Govern- 


THE  PEESIDENCY  197 

ment"  declared  that  all  the  checks  and  balances  of  our  po- 
litical system  had  failed  to  preserve  the  balance  of  power 
between  the  three  departments  of  government,  and  that  the 
result  was  Congressional  supremacy.  To-day  we  must  ad- 
mit that  these  checks  and  balances  are  still  unavailing  but 
that  we  now  live  under  a  system  of  executive  supremacy. 
Is  this  change  due  chiefly  to  factors  of  personality  or  does 
it  correspond  to  new  conditions  in  the  social  and  economic 
life  of  a  people?  Is  executive  supremacy  to  be  explained 
away  by  reciting  the  names — Cleveland,  Harrison,  McKinley, 
Roosevelt — or  has  something  far  more  fundamental  than  a 
mere  growth  of  personal  influence  taken  place?  Certainly 
the  latter  is  true. 

Aside  from  the  element  of  personality,  four  important 
causes  have  tended  to  produce  the  changed  relations  between 
executive  and  legislature : 

I.  The  growth  in  volume  of  government  business. 

II.  The    rise    of    new    public    questions    of    a    technical 
character. 

III.  The  popular  demand  for  greater  speed  in  government 
action. 

IV.  The  growing  unwieldiness  of  large  legislative  bodies. 

I.  Growth  of  the  volume  of  public  business.  The  present 
volume  of  governmental  affairs  is  not  explained  by  the 
necessary  increase  of  population,  the  extension  of  the  national 
boundaries  or  the  development  of  new  sections  of  the  coun- 
try. While  these  have  added  their  share,  the  great  majority 
of  governmental  tasks  have  been  occasioned  by  the  develop- 
ment of  the  manufacturing  and  transportation  interests  of 
the  country.  This  development  has  of  necessity  brought 
with  it  a  division  into  separate,  distinct  economic  classes  and 
interests.  The  existence  of  these  distinct  groups  has  created 
two  sets  of  demands,  one  for  government  action  favorable 
to  the  group  interests,  the  other  for  government  regulation 
and  restriction  or  supervision  of  the  activities  of  the  group. 
From  both  sides  our  governments  are  assailed  with  requests 
for  action.  With  each  step  forward  in  the  development  of 


198  HEADINGS  IN  CIVIL  GOVERNMENT 

these  industries  and  with  each  attempt  on  their  part  to  secure 
a  more  profitable  adjustment  of  their  internal  organization, 
some  new  form  of  public  regulation  or  supervision  is  invoked 
and  from  this  a  marked  increase  of  the  volume  of  government 
business  arises.  The  recent  report  of  the  Chief  of  the  Bureau 
of  Corporations  in  the  Department  of  Commerce  and  Labor 
affords  a  notable  instance  of  this  process.  In  1887  it  was 
felt  that  the  trusts  were  the  result  of  railroad  rebates.  The 
Interstate  Commerce  Law  of  that  year  arose  from  this  belief. 
In  1890  industrial  combination  had  reached  a  point  where  it 
could  supposedly  be  reached  by  a  law  prohibiting  restraint 
of  interstate  trade.  The  Sherman  Act  resulted.  In  1903  it 
was  believed  that  the  evils  of  over-capitalization  might  be 
reached  by  publicity  and  the  government  jurisdiction  was 
again  extended.  In  1904  the  Bureau  established  to  secure 
publicity  advocates  the  licensing  of  corporations  engaged  in 
interstate  commerce  and  this  brings  into  the  forum  of  public 
discussion  the  question  of  the  further  extension  cf  govern- 
ment regulation.  As  a  result  of  these  and  similar  extensions 
of  government  power  each  Congress  is  now  burdened  with 
over  20,000  bills  and  resolutions.  In  the  great  volume  of 
matters  brought  to  its  attention  the  legislative  assembly  can- 
not regulate  in  detail  but  is  forced  to  enact  outline  laws, 
leaving  to  the  executive  the  duty  of  filling  in  these  outlines 
by  regulations,  orders  and  rules.  The  administrative  side 
of  the  government  is  thereby  charged  with  the  duty  of 
determining  the  content  and  the  spirit  of  legislation  within 
certain  general  limits. 

II.  It  has  become  a  platitude  to  say  that  modern  busi- 
ness is  more  complex  than  formerly.  This  trite  saying  is 
particularly  true  of  governmental  affairs.  The  problems 
which  we  now  face  do  not  admit  of  settlement  by  a  popular 
vote.  The  standard  of  intelligence  of  our  citizenship  is 
doubtless  rising,  yet  the  voter  is  not  capable  of  working  out 
a  plan  of  government  regulation  or  control. 

The  location  of  an  Isthmian  Canal,  the  reorganization  of 
the  army,  the  construction  of  a  navy,  the  more  rational 


THE  PRESIDENCY  199 

development  of  our  postal  facilities,  the  planning  of  systems 
of  irrigation,  the  regulation  of  corporate  finance,  the  control 
of  railway  rates  and  the  management  of  our  colonial  depend- 
encies, are  national  questions  of  prime  importance;  but  their 
settlement  cannot  depend  upon  a  simple  consensus  of  public 
opinion.  They  require  rather  the  careful  study  of  trained 
specialists  and  experts.  If  we  examine  the  public  problems 
brought  up  for  discussion  in  the  President's  message  it  will 
be  seen  that  they  are  pre-eminently  industrial  or  commercial 
in  character  and  that  they  are  technical  rather  than  popular. 
The  numbers  and  importance  of  this  class  of  public  problems 
are  growing  by  leaps  and  bounds — a  fact  which  necessarily 
brings  into  greater  prominence  the  executive  as  the  expert 
branch  of  the  government. 

III.  The  demand  for  quick  government.  One  feature  of 
our  economic  conditions  that  has  largely  escaped  the  atten- 
tion of  publicists,  is  the  influence  of  means  of  communication 
upon  government.  This  influence  is  indirect,  but  none  the 
less  powerful  in  its  action.  Better  means  of  transport  and 
communication  not  only  create  a  general  quickening  in  the 
pace  of  commerce  and  manufactures;  they  also  involve  a 
subtler  change  in  the  psychology  of  the  people.  Our  inter- 
ests and  our  mental  processes  are  reaching  out  beyond  the 
narrower  local  environment  and  are  becoming  national  and 
even  cosmopolitan  in  scope.  But  by  this  same  fact  they  move 
more  quickly.  We  are  intolerant  of  delay  in  business  or 
government.  The  continued  outcropping  of  lynch  law  in 
advanced  communities  is  not  always  a  sign  of  simple  mob 
lawlessness,  but  is  frequently  an  expression  of  our  whole  atti- 
tude towards  the  action  of  the  State.  Doubtless  it  were  bet- 
ter that  more  deliberation  might  sometimes  be  exercised  in 
public  affairs ;  but  such  is  not  the  view  of  the  people  at  large. 
Therefore  the  government  must  act  and  act  quickly.  But  our 
legislative  machinery  was  deliberately  planned  to  secure  slow 
action,  while  the  executive  is  lightning-like  in  its  swiftness. 
For  illustration,  a  change  in  the  method  of  interpreting  and 
administering  our  immigration  laws  involves  a  newspaper 


200  READINGS  IN  CIVIL  GOVERNMENT 

article  pointing  to  an  evil  in  the  present  system,  an  official 
investigation  lasting  about  three  days,  a  report,  and  finally  a 
telegram  of  instructions  from  Washington  to  San  Francisco, 
New  York  or  Philadelphia.  A  change  in  the  laws  themselves, 
on  the  contrary,  requires  the  formation  of  a  strong  public 
sentiment,  a  session,  two  sessions  or  several  years  spent  in 
compromises,  amendments  and  discussion,  and  finally  the 
passage  of  the  bill  in  an  amended  or  weakened  form. 
Administrative  action  by  its  very  quickness  carries  with  it 
something  of  the  arbitrary;  certainly  it  is  capable  of  serious 
abuse  if  not  exercised  with  care,  but  in  the  main  it  satisfies 
the  demands  of  the  time  and  is  growing  rapidly  in  popular 
favor.  This  fact  strikes  us  most  forcibly  in  the  national 
government  because  the  centralization  of  power  there  is  more 
impressive,  but  the  principle  holds  equally  true  of  our  cities. 
With  the  construction  of  every  trolley-line  and  the  elevation 
of  every  telephone  or  telegraph  wire,  the  possibility  of  and 
the  popular  demand  for  the  swifter  exercise  of  municipal 
authority  is  increased.  Even  in  our  commonwealths,  the 
number  of  problems  which  cannot  await  the  more  leisurely 
treatment  of  the  legislative  assembly,  but  must  be  solved  from 
day  to  day,  is  becoming  so  large  as  to  occasion  a  shifting  of 
power  to  the  administrative  officials.  In  leaving  the  discus- 
sion of  this  point  it  should  be  noted  that  a  larger  amount  of 
human  energy  and  attention  is  constantly  being  devoted  to 
time-saving  devices  of  all  kinds.  The  demand  for  speed  feeds 
upon  itself  and  the  influence  of  this  demand  upon  the  rela- 
tive positions  of  the  legislative  and  executive  departments 
may  apparently  be  even  stronger  in  the  future  than  at 
present. 

IV.  At  first  glance  it  might  seem  that  the  greater  size  of 
our  legislatures  is  a  national  compensation  for  the  increase 
in  the  public  business;  with  more  work  to  do  we  have  more 
legislators  to  do  it  and  the  possibility  of  a  greater  division  of 
labor.  But  large  numbers  in  a  legislative  assembly  means 
slower  procedure  and  greater  difficulty  in  transacting  busi- 
ness. With  each  addition  to  our  City  Councils,  State  Legis- 


THE  PRESIDENCY  201 

latures  and  National  Congress,  the  unwieldiness  of  these 
bodies  becomes  more  apparent  and  the  possibility  of  maintain- 
ing the  present  forms  of  legislation  more  difficult.  .  .  . 

These  four  causes  rather  than  the  particular  personality  of 
the  administrative  chief,  have  called  forth  the  system  of 
executive  supremacy.  In  the  last  analysis  Congress  and  the 
President  are  keen  competitors  for  the  interest,  the  enthusiasm 
and  the  sympathetic  approval  of  the  people.  In  that  earliest 
epoch  of  our  national  history  when  the  minds  of  men  were 
governed  by  the  remembrance  of  former  tyranny  and  the  fear 
of  a  new  despotism  it  was  natural  and  inevitable  that  Ameri- 
cans should  look  to  Congress  for  the  protection  of  their  liber- 
ties and  the  expression  of  their  political  beliefs.  At  that 
stage  of  the  competition  Congress,  as  the  possessor  of  the 
qualities  of  deliberation,  traditional  jealousy  of  the  executive 
and  habitual  care  of  the  rights  of  the  people,  certainly 
deserved  and  received  the  first  place  in  the  confidence  of 
the  citizenship.  But  at  present  with  the  advent  of  the  new 
conditions  already  outlined  it  would  be  strange  indeed  if  the 
President  were  not  awarded  this  preferment.  The  executive 
office  stands  emphatically  for  those  qualities  and  characteris- 
tics which  we  now  consider  as  typically  American — efficient, 
purposeful,  definite,  quick  action. 

With  this  shifting  of  the  relations  between  the  two  depart- 
ments of  government  there  arises  a  series  of  important  prob- 
lems which  will  have  to  be  faced  if  executive  supremacy  is 
to  be  continued  as  a  feasible  and  satisfactory  system  of  gov- 
ernment. The  first  of  these  is  the  adjustment  of  the  legal 
relations  between  the  two  departments.  At  present  the  legis- 
lative leadership  of  the  administrator  must  be  exercised 
through  devious  and  indirect  channels.  The  annual  message 
is  of  insignificant  value  in  this  respect.  It  must  be  suppli- 
mented  by  the  drafting  of  bills  in  the  various  administrative 
departments  and  the  introduction  of  these  bills  through  legis- 
lators friendly  to  the  administration.  The  executive  officers 
must  appear  before  legislative  committees  and  use  what  influ- 
ence they  can  to  secure  favorable  action  by  these  committees. 


202  READINGS  IN  CIVIL  GOVERNMENT 

The  chief  executive  must  form  the  personal  and  political 
friendship  which  will  advance  the  legislative  measures  for 
which  his  administration  stands,  and  to  this  end  he  must  use 
his  various  powers  and  prerogatives.  He  must  strive  to 
create  within  the  legislative  body,  by  all  of  these  indirect 
means,  a  sentiment  of  respect  for  the  prestige  of  the  adminis- 
tration. In  short,  the  American  President  has  all  of  the 
work  which  the  British  Prime  Minister  and  the  Cabinet  per- 
form, but  he  is  at  present  subject  to  all  the  hindrances  of  a 
system  calculated  on  the  needs  of  the  eighteenth  century. 
To  do  away  with  these  anomalous  and  obstructive  legal  con- 
ditions is  the  problem  of  the  immediate  future. 

In  the  second  place,  there  is  the  need  of  some  system  of 
administrative  courts  to  protect  the  citizen  from  the  arbitrary 
action  of  subordinate  officials.  If  government  regulation  is 
to  be  extended  with  each  step  forward  in  our  industrial  and 
commercial  development,  there  will  be  opened  up  an  immense 
field  of  supervision,  inspection,  regulation  and  control,  bring- 
ing the  public  official  into  close  contact  with  the  citizen  in 
a  thousand  different  ways.  To  increase  the  points  of  contact 
without  increasing  the  friction  is  a  difficult  and  delicate  task. 
We  already  need  judges  trained  in  the  distinctively  adminis- 
trative questions  of  the  government  who  can,  by  a  speedy 
and  inexpensive  procedure,  decide  on  points  of  dispute  be- 
tween administrator  and  citizen  in  such  a  way  as  to  main- 
tain the  efficiency  of  the  government  and  safeguard  the  rights 
of  the  individual. 

42.   THE  POWERS  OP  THE  PRESIDENT. 

The  Constitution  clearly  vests  in  the  President  the  appointing 
power  but  says  nothing  as  to  the  power  of  removal  from  office. 
During  the  first  administration  and  again  in  1867  the  right  of  the 
President  to  exercise  this  control  over  his  subordinates  was  ques- 
tioned. The  final  settlement  of  this  question  and  the  administrative 
powers  of  the  President  in  general  are  stated  by  Professor  J.  A. 
Fairlie  as  follows :  * 

i  Selections  42,  43  and  47  are  reprinted  from  Fairlie,  J.  A.,  The 
National  Administration  of  the  United  States,  by  special  permission  of 
MacMillan  and  Company. 


THE  PRESIDENCY  203 

In  the  first  Congress  the  matter  was  thoroughly  discussed. 
The  bill  for  establishing  a  department  of  foreign  affairs  pro- 
vided that  the  head  of  the  department  should  "be  removable 
from  office  by  the  President  of  the  United  States. "  Discus- 
sion at  first  arose  in  the  House  of  Representatives  on  the 
question  whether  the  President  alone  or  the  President  and 
the  Senate  had  this  power  under  the  constitution.  Hamilton 
in  one  of  the  Federalist  papers  had  stated  that  the  consent 
of  the  Senate  would  be  necessary  to  displace  as  well  as  to 
appoint.  It  was  now  urged  that  removal  from  office  was  part 
of  the  appointing  power,  that  the  Senate  had  by  constitu- 
tional authority  the  same  share  in  removals  as  it  had  in  ap- 
pointments, and  that  it  was  unconstitutional  to  attempt  to 
confer  the  power  on  the  President.  There  was  also  some 
opposition  to  the  clause  on  the  ground  that  a  President  might 
abuse  the  power  for  partisan  and  political  ends.  In  oppo- 
sition to  this  view,  it  was  contended  that  the  appointment 
and  removal  of  officers  are  essentially  executive  acts;  and 
that  while  the  President's  power  over  appointments  was 
specifically  limited  by  the  constitution,  there  was  no  limita- 
tion on  his  power  to  remove.  Madison  supported  the  Presi- 
dent's power  of  removal;  and  replied  to  the  charge  that  he 
might  abuse  the  power,  that  wanton  removal  of  meritorious 
officers  would  subject  him  to  impeachment  and  removal  from 
his  own  position.  The  motion  to  strike  out  the  clause,  which 
had  been  supported  by  those  who  favored  Senate  participa- 
tion, was  defeated  by  a  vote  of  thirty-four  to  twenty. 

It  was  next  pointed  out,  however,  that  the  clause  did  not 
rest  the  President's  authority  on  the  constitution,  but  at- 
tempted to  confer  the  power  on  him  by  legislative  enactment ; 
and  it  was  urged  that  it  was  both  useless  and  improper  for 
the  Congress  to  grant  a  power  already  conferred  by  the  con- 
stitution. Accordingly,  the  original  clause  was  withdrawn; 
and  in  another  part  of  the  bill  a  provision  was  inserted  for 
filling  vacancies,  "whenever  the  said  principal  officers  shall 
be  removed  from  office  by  the  President  of  the  United  States, 


204  READINGS  IN  CIVIL  GOVERNMENT 

or  in  any  other  case  of  vacancy."  This  was  understood  and 
accepted  as  a  positive  declaration  that  the  right  of  removal 
was  conferred  on  the  President  by  the  constitution. 

In  the  Senate  there  was  strong  opposition  to  the  provision 
in  the  House  bill,  but  eventually  it  was  adopted  by  the  cast- 
ing vote  of  the  Vice-P  resident.  And  during  the  same  ses- 
sion of  Congress,  bills  organizing  the  Treasury  department 
and  the  War  department,  containing  precisely  the  same  pro- 
visions, were  passed  by  both  houses. 

This  action  took  place  in  1789.  For  78  years  the  inter- 
pretation of  the  constitution  then  accepted  was  followed  with- 
out question.  Then  during  the  quarrel  between  Congress  and 
President  Johnson  an  act  was  passed  for  the  express  purpose 
of  preventing  removals  by  the  latter.  This  Tenure  of  Office 
Act  of  1867  distinctly  repudiated  the  construction  formerly 
given  to  the  constitution,  but  does  not  clearly  assert  whether 
the  power  of  removal  resides  in  the  President  and  Senate 
under  the  constitution  or  that  Congress  has  control  over 
the  subject.  It  declared  that  removals  to  be  valid  must  be 
consented  to  by  the  Senate,  that  during  the  recess  of  the 
Senate  the  President  could  do  no  more  than  conditionally 
suspend  an  officer,  and  that  only  for  good  cause;  and  that 
he  must  report  all  suspensions  for  the  approval  of  the  Senate 
within  twenty  days  after  the  beginning  of  a  new  session. 

Two  years  later,  when  President  Johnson  was  succeeded 
by  President  Grant,  the  law  of  1867  relating  to  removals  and 
suspensions  was  amended  by  additional  legislation.  In  the 
new  statute,  the  President  was  permitted  to  suspend  officers ' '  in 
his  discretion,"  instead  of  only  on  certain  specified  grounds. 
Where  the  former  law  had  provided  that  a  suspended  officer 
should  resume  his  office  if  the  Senate  refused  to  concur  in 
the  suspension,  the  statute  of  1869  simply  provided  that  if 
the  Senate  refused  to  confirm  an  appointment  in  place  of  a 
suspended  officer,  the  President  should  nominate  another  per- 
son for  the  office.  This  latter  arrangement  would  seem  to 
make  the  President's  power  of  suspension  equivalent  to  the 
power  of  removal,  although  the  use  of  the  word  suspension 


THE  PRESIDENCY  205 

is  somewhat  equivocal.  Evidently  President  Grant  was  not 
entirely  satisfied,  for  in  his  first  annual  message  to  Congress 
he  complained  of  the  law  of  1869.  But  as  the  President 
and  Senate  were  now  in  political  accord  no  difficulties  arose ; 
and  the  statute  was  allowed  to  remain.  Nor  did  any  trouble 
arise  until  on  the  inauguration  of  President  Cleveland  in 
1885,  the  President  and  the  majority  of  the  Senate  were  again 
politically  opposed. 

During  the  session  of  Congress  in  the  winter  of  1885-6, 
the  Senate  delayed  action  for  several  months  on  a  large  num- 
ber of  nominations  made  by  President  Cleveland  to  fill  vacan- 
cies caused  by  suspensions  during  the  preceding  recess.  Dur- 
ing this  period  the  Senate  endeavored  to  obtain  from  the 
executive  departments  information  as  to  the  causes  of  the 
suspensions,  and  this  information  the  executive  departments, 
under  direction  of  the  President,  declined  to  furnish.  The 
President  claimed  that  suspension  was  a  purely  executive  act 
with  which  the  Senate  had  no  concern.  The  senate  asserted 
in  a  Resolution  that  it  was  "the  duty  of  the  Senate  to  refuse 
its  advice  and  consent  to  proposed  removals  of  officers ' '  when 
the  documents  and  papers  in  reference  to  supposed  official 
misconduct  were  withheld  by  the  Executive.  The  President 
maintained  his  position ;  and  eventually  the  Senate  confirmed 
the  nominations  to  fill  the  vacancies. 

At  the  next  session  of  Congress,  an  Act  was  passed  repeal- 
ing the  Act  of  1869  amending  the  Tenure  of  Office  Act  of 
1867.  This  Act  of  1887  repealed  the  provision  requiring  the 
submission  of  suspensions  to  the  Senate,  and  thus  restored 
the  original  interpretation  of  the  President's  unlimited  power 
of  removal.  According  to  the  earlier  and  present  construc- 
tion, the  Tenure  of  Office  Acts  of  1867  and  1869  were  uncon- 
stitutional, since  they  were  based  on  the  theory  that  Con- 
gress had  the  power  to  determine  how  removals  should  be 
made. 

It  is  true  that  soon  after  the  passage  of  the  Act  of  1867, 
a  circuit  judge  considered  it  constitutional,  on  the  ground 
that  Congress  had  full  control  over  the  question,  and  under 


206  READINGS  IN  CIVIL  GOVERNMENT 

the  earlier  system  had  practically  conceded  the  right  of  re- 
moval to  the  President.  But  in  the  face  of  subsequent  events, 
it  may  be  doubted  whether  this  dictum  is  the  final  judicial 
opinion  on  the  question. 

Certainly  in  recent  cases  the  Supreme  Court  has  recognized 
an  unlimited  presidential  power  of  removal  in  the  face  of 
statutory  provisions  similar  to  those  which  the  state  courts 
consider  as  limitations  on  the  removal  power  of  state  gov- 
ernors. In  one  case  it  has  been  held  that  the  President's 
power  of  removal  applies  to  officers  appointed  for  a  definite 
term,  before  that  term  has  expired.  And  in  another  case  it 
has  been  held  that  the  President's  power  is  not  restricted 
by  an  Act  of  Congress  defining  certain  causes  for  removal. 

This  latter  case  arose  out  of  an  Act  of  1890  establishing 
the  board  of  customs  appraisers,  which  provided  that  the 
appraisers  were  to  be  appointed  for  no  definite  term,  but  could 
be  removed  by  the  President  for  ' *  inefficiency,  neglect  of  duty 
or  malfeasance  in  office."  This  board  of  appraisers  has  been 
called  a  customs  administrative  court;  and  it  seems  to  hav«> 
been  the  intention  to  give  its  members  a  tenure  approach- 
ing in  permanence  that  of  the  national  judiciary.  In  the 
states,  a  provision  authorizing  removals  for  certain  causes, 
is  regularly  held  by  the  state  courts  to  require  a  statement 
of  charges  and  an  investigation  by  the  removing  authority. 
When,  therefore,  an  appraiser  named  Shurtleff  was  removed 
from  his  position  without  notice  of  any  charges  or  cause  for 
his  removal,  he  brought  the  question  as  to  the  legality  of  his 
removal  before  the  judiciary.  But  the  Supreme  Court  de- 
cided that  the  provisions  of  the  Act  did  not  restrict  the  Presi- 
dent's power  of  removal  to  the  causes  specified;  but  in  addi- 
tion, the  President  had  the  power  of  removal  at  will,  and  that 
no  notice  or  hearing  was  necessary. 

One  important  class  of  national  officers — the  judges — are 
excepted  from  the  President's  power  of  removal  by  the  con- 
stitution. The  provision  that  United  States  judges  shall  hold 
office  during  good  behavior  makes  them  irremovable  except  by 
the  process  of  impeachment.  But  over  all  officers  in  the 


THE  PRESIDENCY  207 

executive  branch  of  the  government,  the  President's  power 
of  removal  is  beyond  question. 

The  extent  to  which  the  Presidents  have  exercised  the  power 
of  removal  is  one  of  the  most  marked  characteristics  of  Ameri- 
can administration.  Advocated  as  a  necessary  means  to  en- 
able the  President  efficiently  to  discharge  his  duty  to  see  that 
the  laws  are  faithfully  executed;  the  power  has  been  used 
to  make  changes  on  a  large  scale  at  the  beginning  of  every 
presidential  term,  and  in  connection  with  the  four-year  tenure 
for  many  positions  it  operates  to  secure  an  almost  complete 
change  in  the  administrative  personnel,  whenever  there  has 
been  a  political  change  in  the  executive.  While  Madison  held 
that  removal  of  a  meritorious  officer  would  be  a  just  cause 
for  impeaching  the  President,  removals  for  the  sole  purpose 
of  creating  a  vacancy  for  a  political  supporter  have  come 
to  be  a  frequent  occurrence.  It  must  be  noted,  however,  that 
the  customs  of  removals  for  political  reasons  is  a  logical  re- 
sult of  the  system  of  political  appointments.  .  .  . 

Although  the  authority  to  see  that  the  laws  were  executed 
was  clearly  specified  in  the  constitution,  and  the  power  of 
removal  was  recognized  from  the  first  as  belonging  to  the 
President,  the  early  statutes  organizing  the  administrative 
services  did  not  always  acknowledge  the  President's  power 
of  direction.  In  some  cases  the  power  of  direction  was  ex- 
pressly recognized,  as  in  the  acts  organizing  the  departments 
of  foreign  affairs  and  of  war;  but  in  these  branches  of  ad- 
ministration the  President  was  given  by  the  constitution  more 
specific  authority,  which  could  not  readily  be  overlooked.  On 
the  other  hand,  the  Act  of  1789,  organizing  the  department 
of  the  Treasury,  contained  no  reference  to  any  presidential 
power  of  direction,  and  indicated  that  the  administration  of 
the  finances  was  to  be  kept  under  the  close  supervision  of 
Congress.  The  act  provided  that  the  secretary  of  the  treasury 
should  perform  all  such  services  relative  to  the  finances  as  he 
should  be  directed  to  perform,  while  the  context  shows  that 
the  direction  of  Congress  and  not  of  the  President  was  meant. 
Furthermore,  the  secretary  of  the  treasury,  unlike  the  other 


208  READINGS  IN  CIVIL  GOVERNMENT 

secretaries,  was  to  make  his  report,  not  to  the  President,  but 
to  Congress.  So,  too,  the  Post-Office  department  was  organ- 
ized without  any  reference  to  presidential  control  or  direc- 
tion. 

The  view  thus  negatively  indicated  that  the  President  had 
but  a  limited  power  of  direction,  is  more  positively  expressed 
in  a  judicial  opinion  in  one  of  the  United  States  courts  as 
late  as  1835  :— 

"The  legislative  may  prescribe  the  duties  of  the  office  at  the  time 
of  its  creation  or  from  time  to  time,  as  circumstances  may  require. 
If  those  duties  are  absolute  and  specific,  and  not  by  law  made  sub- 
ject to  the  control  or  direction  of  any  superior  officer  who  is  by 
law  especially  authorized  to  direct  how  those  duties  are  to  be  per- 
formed, the  officer  whose  duties  are  thus  prescribed  by  law  is  bound 
to  execute  them  according  to  his  own  judgment.  That  judgment 
cannot  lawfully  be  controlled  by  any  other  person.  ...  As  the 
head  of  an  executive  department  he  is  bound,  when  required  by  the 
President,  to  give  his  opinion  in  writing  upon  any  subject  relating 
to  the  duties  of  his  office.  The  President,  in  the  execution  of  his 
duties  to  see  that  the  laws  are  faithfully  executed,  is  bound  to  see 
that  the  postmaster-general  discharges  'faithfully'  the  duties  as- 
signed by  law;  but  this  does  not  authorize  the  President  to  direct 
him  how  he  shall  discharge  them." 

This  opinion  indicates  the  earlier  conception  of  the  Presi- 
dent's power  of  direction.  But  even  before  it  was  uttered, 
it  had  been  effectively  overruled  by  the  action  of  President 
Jackson  in  forcing  the  secretary  of  the  treasury  to  remove 
the  government  deposits  from  the  United  States  bank.  Not- 
withstanding the  semi-independent  position  given  to  the  secre- 
tary of  the  treasury  by  Congress,  and  although  the  control 
of  government  funds  was  given  specifically  to  that  officer; 
when  Jackson  determined  that  they  should  no  longer  be  de- 
posited in  the  United  States  bank,  he  first  transferred  one 
recalcitrant  secretary  (McLane),  and  removed  his  successor, 
who  also  declined  to  act  as  the  President  wished,  and  finally 
secured  one  (Taney)  who  executed  his  wishes.  There  was 
strong  opposition  to  this  action  on  the  part  of  the  President, 
and  the  Senate  passed  a  resolution  of  censure.  But  this  did 


THE  PRESIDENCY  209 

not  alter  the  situation.  The  President  had  demonstrated  his 
authority,  and  established  a  precedent;  and  so  long  as  the 
power  of  removal  is  not  restricted,  it  is  clear  that  the  Presi- 
dent can  in  fact  control  the  action  of  any  administrative 
officer  in  the  national  service. 

Since  the  time  of  President  Jackson's  action,  the  larger 
scope  of  the  presidential  power  of  direction  has  come  to  be 
more  clearly  recognized.  Congress  has  added  to  the  specific 
grants  authorizing  the  President  to  direct  the  executive  de- 
partments. Attorneys-general  have  presented  opinions  as  to 
the  President's  authority,  couched  sometimes  in  extravagant 
terms,  while  the  Supreme  Court  has  clearly  indicated  that 
the  President's  authority  is  not  limited  to  the  express  terms 
of  congressional  statutes. 

Under  existing  statutes  the  President  has  specific  and  posi- 
tive authority  to  issue  instructions  and  orders  to  the  secre- 
tary of  state,  the  secretary  of  war,  and  the  secretary  of  the 
navy;  to  require  the  legal  opinion  of  the  attorney-general, 
and  to  cause  even  the  secretary  of  the  treasury  to  promulgate 
regulations  for  a  special  purpose.  He  has  also  express 
statutory  authority  to  "call  out  the  militia  of  any  state  or 
employ  the  land  and  naval  forces  to  suppress  rebellion  against 
the  United  States,  when  the  ordinary  course  of  judicial  pro- 
ceedings is  in  his  judgment  impracticable." 

But  in  addition  to  these  and  many  other  detailed  duties 
and  powers  imposed  by  statutes,  the  President  issues  direc- 
tions and  instructions  in  many  cases  not  directly  covered  by 
any  specific  provision  of  the  statutes.  Thus  he  has  used  the 
army  for  the  protection  of  the  mails  without  express  statutory 
authority.  And  he  has  authorized  a  guard  for  the  protec- 
tion of  a  justice  of  the  Supreme  Court  in  the  discharge  of  his 
duties. 

Such  extra-statutory  authority  of  the  President  has  been 
repeatedly  supported  by  the  attorneys-general,  and  has  been 
distinctly  upheld  by  the  Supreme  Court. 

While  the  President  thus  has  now  a  recognized  and  effec- 
tive power  of  direction  over  executive  officials,  this  is  exer- 


210  READINGS  IN  CIVIL  GOVERNMENT 

cised  mainly  on  his  own  initiative,  and  he  does  not  entertain 
appeals  from  or  exercise  a  power  of  revision  over  the  acts 
of  officials  on  matters  within  their  competence.  In  the 
opinion  of  various  attorneys-general,  the  President  has  no 
power  to  correct  by  his  official  act  the  errors  of  judgment  of 
incompetent  or  unfaithful  subordinates,  and  there  is  no  ap- 
peal to  the  President  from  the  decision  of  the  head  of  a  de- 
partment in  such  cases.  If  this  rule  were  not  adopted  the 
President  would  be  overwhelmed  with  appeals  on  matters  of 
detail  and  the  transaction  of  public  business  would  be 
seriously  interrupted.  Where,  however,  the  question  refers 
to  the  jurisdiction  or  competence  of  the  subordinate  officer, 
an  appeal  to  the  President  has  been  allowed. 

ADDITIONAL  READINGS 

1 — Treaties  and  Foreign  Relations,  Finley  and  Sanderson, 

The  American  Executive,  280-92. 
2 — The  President,  Bryce,  J.,  American  Commonwealth,  I,  38- 

52. 

3 — The  Presidential  Veto,  Finley  and  Sanderson,  The  Ameri- 
can Executive,  206-17. 
4 — The  Issues  in  Presidential  Elections,  Bryce,  J.,  American 

Commonwealth,  II,  213-19. 
5 — The  Law  of  Electoral  Count,  Burgess,  J.   W.,  Political 

Science  Quarterly,  III,  633-53. 
6 — The  Hampered  Executive,  Nelson,  H.  L.,  The  Century 

Magazine,  XLIV,  140-50. 
7 — The  Presidential  Office,  Rhodes,  J.  F.,  Scribnerfs  Magazine, 

XXXIII,  164r-74. 
8 — Relations  Between  the  Executive  and  Congress,  Cleveland, 

G.,  Presidential  Problems,  40-69. 


CHAPTER  X 
THE  EXECUTIVE  DEPARTMENTS 

43.   THE   CABINET. 

Professor  J.  A.  Fairlie  in  the  following  selection  gives  a  clear 
statement  of  the  legal  position  and  the  functions  of  the  President's 
Cabinet : 

In  the  discharge  of  his  administrative  functions  the  Presi- 
dent is  assisted  by  a  group  of  advisers  known  as  the  Cabinet, 
which  has  some  resemblances  and  some  points  of  difference 
to  the  cabinets  in  other  governments.  As  is  the  general  rule 
elsewhere,  the  President's  Cabinet  is  composed  of  the  heads 
of  the  principal  executive  departments,  into  which  the  national 
administration  is  organized.  Like  the  British  cabinet,  it  has 
no  legal  existence  as  a  collective  body.  But,  unlike  the 
cabinets  in  countries  having  the  parliamentary  system  of  gov- 
ernment, neither  the  Cabinet  as  a  whole  nor  the  individual 
members,  in  the  United  States,  are  politically  responsible  for 
the  acts  of  the  chief  executive.  The  President  has  full  author- 
ity and  sole  responsibility;  and  his  Cabinet  is  simply  a  con- 
sultative and  advisory  body  to  him,  without  any  effective 
control  over  legislation.  This  situation  is  indicated  by  the 
fact  that  the  members  of  the  President's  Cabinet  are  gener- 
ally called  secretaries,  instead  of  the  more  dignified  title  of 
ministers,  which  is  used  in  most  other  countries. 

While  the  Cabinet  as  a  body  has  no  formal  legal  existence, 
its  membership  is  in  fact  determined  by  the  number  of  ex- 
ecutive departments  in  the  national  administration.  These, 
departments  have  been  created  by  congressional  statutes, 
which  relate  strictly  to  their  jurisdiction  and  powers.  The 
constitution  does  not  expressly  provide  what  authority  shall 

211 


212  READINGS  IN  CIVIL  GOVERNMENT 

have  this  power  of  organizing  the  departments;  indeed,  it 
does  not  specifically  direct  the  creation  of  such  departments, 
although  it  recognizes  their  existence  in  two  places.  It  per- 
mits the  President  to  require  the  opinion  in  writing  of  the 
heads  of  the  executive  departments ;  and  it  provides  that  Con- 
gress may  vest  the  power  of  appointing  inferior  officers  in 
the  heads  of  such  departments.  The  last  cited  clause  speaks 
of  "offices  established  by  law,"  and  this  has  been  interpreted 
as  giving  to  the  legislature  the  organizing  power.  Moreover, 
not  only  are  the  departments  in  their  main  features  created 
and  established  by  Congress ;  but  also  their  internal  organiza- 
tion, and  the  powers  and  duties  of  the  various  heads  of  sub- 
divisions are  often  regulated  in  detail  by  statute.  Only  rarely 
does  a  statute  provide  that  the  head  of  a  department  shall 
organize  any  particular  sub-division. 

In  other  countries  the  internal  organization  of  the  depart- 
ments, and  in  continental  Europe  even  the  principal  depart- 
ments, are  established  by  executive  order.  This  system  has 
the  advantage  of  flexibility,  since  it  permits  frequent  changes 
to  be  made  quickly  to  meet  new  conditions.  The  rigidity  of 
an  organization  fixed  by  statute  is  not  always  conducive  to 
economic  or  efficient  administration.  An  illustration  of  this 
may  be  noted  in  the  creation  by  statute  of  districts  for  the 
collection  of  customs  duties.  The  districts  as  they  now  exist 
were  established  many  years  ago,  and  some  of  the  ports 
formerly  of  importance  have  sunk  into  insignificance  with 
changes  in  the  lines  of  foreign  trade.  Secretaries  of  the 
Treasury  have  repeatedly  reported  this  situation  to  Congress 
and  recommended  the  abolition  of  the  less  important  dis- 
tricts. But  Congress  has  failed  to  act  on  these  recommenda- 
tions, probably  on  account  of  the  opposition  of  the  members 
from  the  sections  affected.  Such  matters  could  with  advan- 
tage be  left  to  administrative  regulation ;  while  the  legislative 
control  over  finances  would  effectively  check  any  tendency 
to  extravagance  which  might  be  feared  from  the  administra- 
tive officers.  .  .  . 

The  number  of  Cabinet  members  is  much  smaller  in  the 


THE  EXECUTIVE  DEPARTMENTS  213 

United  States'  national  administration  than  in  other  impor- 
tant countries.  This  is  due  in  part  to  the  federal  system  of 
government,  which  leaves  to  the  States  such  matters  as  educa- 
tional administration,  the  supervision  over  local  government, 
and  the  regulation  of  manufacturing  industry  and  of  com- 
merce which  does  not  cross  state  lines.  But  in  some  cases 
services  performed  by  the  national  government  are  in  this 
country  organized  as  subordinate  bureaus  of  one  of  the  main 
departments,  which  in  other  countries  are  in  charge  of  an 
official  of  cabinet  rank.  Such,  for  example,  are  the  public 
works  and  colonies  under  the  Secretary  of  War. 

Department  secretaries  are  appointed  by  the  President,  "by 
and  with  the  advice  and  consent  of  the  Senate. "  There  have 
been,  however,  but  a  few  exceptional  cases  where  the  Senate 
has  attempted  to  exercise  any  control  over  the  President's 
selections  for  these  positions;  and  the  power  of  appointment 
is  practically  exercised  by  the  President  himself.  He  is  under 
no  compulsion  to  choose  the  members  of  his  Cabinet  from  the 
political  party  which  controls  the  Senate,  still  less  from  the 
party  which  controls  the  House  of  Representatives.  And 
each  President  is  free  to  select  his  own  advisers,  without 
reference  to  those  of  his  predecessor. 

Nevertheless,  there  are  certain  customs  and  limitations  ob- 
served by  the  Presidents  in  their  choice.  Elected  to  his  posi- 
tion by  a  political  party,  the  President  is  confined  in  the  choice 
of  his  Cabinet  to  the  members  of  his  own  party.  Washing- 
ton attempted  to  secure  a  Cabinet  with  representatives  of 
different  political  views;  but  the  attempt  was  not  successful. 
Lincoln  selected  some  men  who  had  been  democrats  and  some 
who  had  been  whigs;  but  all  had  definitely  attached  themselves 
to  the  new  republican  party.  Cleveland  in  1893  appointed  a 
former  republican  as  Secretary  of  State;  but  he  had  sup- 
ported the  democratic  candidate  at  the  preceding  election,  and 
was  in  no  sense  a  representative  of  the  opposing  party. 

Several  groups  of  members,  chosen  on  different  grounds, 
may  generally  be  recognized  in  each  Cabinet  as  finally  or- 
ganized. Some  receive  their  position  as  party  leaders.  If 


214  READINGS  IN  CIVIL  GOVERNMENT 

there  is  a  well-marked  division  within  the  party,  there  will 
be  some  persons  closely  allied  to  the  President,  and  usually 
some  representatives  of  the  opposing  element.  The  Secretary 
of  State  has  frequently  been  the  strongest  rival  of  the  Presi- 
dent for  the  party  nomination.  Some  members  are  selected 
largely  because  of  their  services  in  political  campaigns,  either 
past  or  prospective.  Occasionally  there  will  be  a  selection 
based  mainly  on  administrative  qualifications  for  the  special 
department.  And  there  are  usually  some  persons  in  the 
Cabinet  chosen  by  the  President  mainly  on  account  of  per- 
sonal considerations. 

Few  of  the  Cabinet  members  are  taken  directly  from  Con- 
gress. Occasionally  ex-Senators  and  ex-Members  of  the  House 
of  Representatives  are  appointed.  But  a  Senator  feels  that 
his  position  in  the  Senate  is  more  secure  if  he  continues  to 
occupy  it;  and  that  the  longer  tenure  with  the  chance  for 
re-election  makes  it  a  more  influential  post  than  that  of  de- 
partment secretary  for  not  more  than  four  years.  Most  of 
the  representatives  are  not  of  sufficient  calibre  for  the  Cabinet ; 
while  the  few  leaders — who  are  also  usually  sure  of  their  seats 
— prefer  the  political  and  legislative  work  of  Congress  to  the 
administrative  service. 

One  consideration  of  considerable  weight  is  the  representa- 
tion of  different  sections  of  the  country.  There  is  no  rule 
requiring  anything  like  a  proportional  distribution  of  the  posi- 
tions; but  it  is  felt  to  be  advisable  that  each  of  the  large 
divisions  of  the  country  should  have  a  member  in  the 
cabinet.  .  .  . 

In  their  collective  capacity  the  department  secretaries  are 
known  as  the  President's  Cabinet.  But  this  Cabinet,  while  in 
some  respects  resembling  the  cabinets  in  European  govern- 
ments, occupies  in  fact  a  very  different  and  much  less  impor- 
tant place  in  the  government.  Like  the  British  cabinet,  it  is 
an  entirely  extra-legal  body,  authorized  neither  by  the  con- 
stitution nor  the  statutes,  nor  even  any  formal  regulation  or 
order  of  the  President.  But  the  British  cabinet  is  at  least 


THE  EXECUTIVE  DEPARTMENTS  215 

an  informal  committee  of  the  Privy  Council,  one  of  the  oldest 
features  of  the  British  constitution,  and  is,  moreover,  the  work- 
ing part  of  the  Privy  Council;  while  in  this  country  the 
Cabinet  is  purely  a  voluntary  association  of  the  heads  of  the 
departments. 

Not  only  has  the  President's  Cabinet  no  legal  existence,  it 
has  no  collective  responsibility,  and  no  control  over  the  politi- 
cal and  legislative  work  of  Congress.  In  most  European 
countries  the  members  of  the  cabinet  are  the  leaders  of  the 
majority  in  the  legislature;  and  are  the  responsible  directors 
of  legislation.  In  the  United  States,  the  members  of  the 
Cabinet  cannot  be  members  of  Congress;  and  by  custom  are 
excluded  from  speaking  in  either  house,  although  they  fre- 
quently appear  before  congressional  committees.  It  has  been 
proposed  to  give  them  seats  and  the  privilege  of  speaking  in 
Congress  without  a  vote;  and  this  action  would  doubtless  in- 
crease their  influence  in  legislation,  but  so  long  as  they  are 
chosen  by  the  President  without  reference  to  the  party  major- 
ity in  Congress  they  could  not  become  the  controlling  factors. 

Even  in  administrative  affairs,  the  Cabinet  as  a  collective 
body  has  no  legal  control  over  the  President  or  of  any  single 
member.  If  votes,  resolutions  or  formal  recommendations 
were  passed,  they  would  not  legally  bind  the  President  in 
the  slightest  degree.  It  is  a  purely  advisory  body  voluntarily 
consulted  by  the  President;  but  the  latter  must  himself  make 
the  final  decision  and  assume  full  responsibility  for  all  de- 
cisions. 

While  it  is  necessary  to  recognize  the  less  important  posi- 
tion of  the  President's  Cabinet  as  compared  with  the  cabinets 
in  such  countries  as  England,  France  and  Prussia,  there  is 
also  some  danger  of  underestimating  its  functions  and  in- 
fluence. Thus  Mr.  Bryce  says:  "The  ministers  meet  in 
council,  but  have  comparatively  little  to  settle  when  they 
meet;  .  .  .  they  are  a  group  of  heads  of  departments, 
whose  chief,  though  he  usually  consults  them  separately, 
often  finds  it  useful  to  bring  together  in  one  room  for  a 


216  READINGS  IN  CIVIL  GOVERNMENT 

talk  about  politics  or  to  settle  some  administrative  question 
which  lies  on  the  borderland  between  the  provinces  of  two 
ministers. ' ' 

If  this  statement  fully  represented  the  work  of  the  Cabinet, 
it  would  be  difficult  to  understand  the  necessity  for  two  regu- 
lar meetings  of  the  Cabinet  every  week  during  the  greater 
part  of  the  year.  Not  merely  matters  involving  more  than 
one  department,  but  most  matters  of  first  importance  in  the 
field  of  any  department  or  of  presidential  action,  are  consid- 
ered and  discussed ;  and  even  in  the  field  of  legislation  meas- 
ures that  are  to  be  officially  recommended  or  privately  urged 
either  by  the  President  or  the  secretaries  are  carefully  gone 
over  and  an  administration  policy  is  usually  worked  out  and 
adopted.  In  administrative  matters,  the  Cabinet  consulta- 
tions serve  not  only  to  avoid  conflicting  action  by  the  different 
departments,  but  also  to  bring  about  in  large  measure  a  har- 
monious spirit  of  co-operation;  and  in  both  respects  the 
national  administration  is  much  more  effective  than  the  dis- 
organized executive  machinery  in  most  of  the  states.  In 
legislative  matters,  the  influence  of  the  Cabinet  consultations 
necessarily  depends  on  the  party  relations  between  the  Presi- 
dent and  Congress.  When  one  or  both  houses  of  Congress 
is  politically  opposed  to  the  President,  comparatively  little 
can  be  accomplished;  but  when  the  President's  party  has  a 
majority  in  both  houses,  the  administration  policy  will,  un- 
less there  are  internal  party  dissensions,  have  large  weight 
in  the  legislation  enacted.  .  .  . 

Each  head  of  a  department  even  in  his  own  field  is  subject 
to  the  control  and  direction  of  the  President.  But  from  the 
causes  which  lead  to  the  establishment  of  the  departments 
this  control  cannot  cover  his  whole  field  of  action.  The  de- 
partments are  created  because  there  is  more  work  to  be  done 
than  can  be  effectively  supervised  by  the  President  himself; 
and  thus  each  secretary  has  a  series  of  administrative  powers 
and  duties  which  they  perform  largely  independent  of  the 
President.  The  constitution  provided  that  Congress  may 
grant  to  the  heads  of  the  departments  the  power  to  appoint  in- 


THE  EXECUTIVE  DEPARTMENTS  217 

ferior  officials;  and  many  laws  have  conferred  this  power,  so 
that  the  greater  mass  of  offices  are  filled  by  the  appointment 
of  the  heads  of  the  departments.  The  more  important  sub- 
ordinates are,  however,  appointed  by  the  President  and  Sen- 
ate. Under  the  civil  service  law  of  1833,  a  great  number  of 
minor  appointments  are  restricted  to  candidates  who  have 
qualified  themselves  by  examinations. 

It  was  early  laid  down  by  the  courts  that  the  power  of 
removal  was  incident  to  the  power  of  appointment.  So 
whenever  the  heads  of  the  departments  have  the  appointing 
power,  they  have  (unless  there  are  express  provisions  in 
statute  or  executive  regulation  to  the  contrary)  the  power  of 
removal  also. 

Under  the  earlier  conception  of  a  head  of  a  department  in 
England  and  the  United  States,  he  was  considered  an  official 
at  the  center  of  government  with  powers  of  appointment  and 
removal,  but  he  was  not  supposed  to  direct  the  actions  of  the 
subordinates  in  his  department.  The  statutes  of  the  legisla- 
ture entered  into  the  most  minute  details  as  to  the  duties 
and  powers  of  the  subordinate  officers,  so  that  the  need  for 
central  instruction  and  supervision  was  not  felt.  This  situa- 
tion can  be  illustrated  in  the  national  administration  by  the 
collectors  of  customs.  Though  appointed  nominally  as  sub- 
ordinates of  the  Secretary  of  the  Treasury,  the  law  did  not 
recognize  that  they  were  subject  to  his  instructions  and  direc- 
tions. It  was  not  the  practice  to  regulate  their  duties  by 
administrative  instructions,  nor  was  there  any  custom  of  ap- 
pealing from  the  decision  of  a  collector  to  the  Secretary  of 
the  Treasury.  But  as  the  result  of  a  century  of  development 
the  national  administration  has  become  centralized  in  spirit 
and  practice  as  well  as  in  form.  It  is  now  recognized  that 
the  department  secretaries  stand  at  the  head  of  a  hierarchy 
of  officials,  with  power  to  reverse  or  modify  on  appeal  the 
decisions  of  inferior  officers  and  to  direct  them  how  to 
act.  In  particular,  the  statutes  now  specifically  provide  for 
an  appeal  from  a  collector  of  internal  revenue  to  the  Treasury 
before  the  aggrieved  party  has  any  standing  in  court;  and 


218  READINGS  IN  CIVIL  GOVERNMENT 

in  the  department  of  the  Interior  there  is  a  well-developed 
system  of  appeals  from  subordinate  officials  to  the  secretary. 
The  courts,  too,  have  recognized  that  the  head  of  a  depart- 
ment may  change  the  decision  of  a  subordinate  officer. 

Still  further  the  heads  of  departments  exercise  a  delegated 
ordinance  power;  and  most  of  the  executive  regulations  are 
in  fact  issued  by  the  department  concerned.  The  revised 
statutes  authorize  the  head  of  each  department  "to  prescribe 
regulations,  not  inconsistent  with  law,  for  the  government  of 
his  department,  the  conduct  of  its  officers  and  clerks,  the  dis- 
tribution and  performance  of  its  business,  and  the  custody, 
use  and  preservation  of  the  records,  papers  and  property 
appertaining  to  it."  Besides  this  grant  to  all  the  heads  of 
departments,  special  ordinance  powers  are  given  to  the  heads 
of  the  particular  departments. 

This  ordinance  power  is,  however,  limited  to  that  specif- 
ically conferred ;  and  where  a  regulation  is  issued  not  clearly 
based  on  legal  authority,  the  courts  do  not  hesitate  to  declare 
it  void  when  its  legality  is  contested  in  suits  before  them. 
But  when  Congress  has  delegated  the  power  to  issue  such 
regulations,  these  when  issued  have  the  full  force  of  a  statute, 
upon  private  individuals  as  well  as  upon  public  officials. 

44.   CABINET  AND  CONGRESS  IN  THE   ADMINISTRATION  OP 
WASHINGTON. 

Although  in  theory  the  legislative  and  executive  branches  of  our 
government  are  separate,  in  practice  it  has  been  found  impossible 
to  avoid  some  form  of  cooperation  between  them.  This  has  been 
the  more  inevitable  because  the  executive  departments  were  not  pro- 
vided for  in  the  fundamental  law  but  have  been  established  by  Con- 
gress, which  may,  therefore,  to  a  certain  degree  control  their  activi- 
ties. The  question  as  to  this  relationship  arose  at  the  very  beginning 
of  our  government  and  the  practice  then  established  is  the  subject 
of  the  following  article  by  Mary  L.  Hinsdale : 

However  conclusive  the  proof  that  Congress  did  not  admit 
the  heads  of  departments  to  its  debates  during  the  formative 
period  of  the  government,  it  cannot  be  denied  that  it  coun- 


THE  EXECUTIVE  DEPARTMENTS  219 

tenanced  the  principle  involved,  by  passing  the  act  to  establish 
the  Treasury  Department,  September  2,  1789.  As  is  well 
known,  this  act  includes  a  provision  that  the  Secretary  of 
the  Treasury  "shall  make  report  and  give  information  to 
either  branch  of  the  Legislature,  in  writing  or  in  person,  as 
may  be  required."  There  is  no  reason  to  suppose  that  the 
members  of  the  First  Congress  saw  in  this  any  violation  of 
that  clause  of  the  Constitution  which  enjoins  that  "no  per- 
son holding  any  office  under  the  United  States  shall  be  a 
member  of  either  House  during  his  continuance  in  office." 
It  is  true  that  the  new  Executive  was  regarded  with  sus- 
picion, so  much  so  that  James  Madison,  the  leader  of  the 
House  of  Representatives,  referring  to  the  opposition  which 
the  attempt  to  secure  the  power  of  removal  to  the  President 
alone  was  encountering,  expressed  the  fear  that  the  Executive 
would  be  the  weak  branch  of  the  government.  Moreover, 
the  general  impression  of  direct  intercourse  between  the 
Executive  and  the  Legislature  was  that  it  would  be  abused 
by  the  former  power.  Nevertheless,  so  far  as  the  writer  of 
this  paper  has  been  able  to  discover,  the  provision  that  the 
head  of  the  Treasury  Department  might  report  in  person, 
if  so  ordered,  was  not  attacked  in  debate.  Whether  it  was 
that  attention  was  diverted  from  it  by  the  onslaught  against 
the  provision  that  the  Secretary  of  the  Treasury  should  digest 
and  report  plans  for  the  improvement  of  the  revenue,  and 
for  the  support  of  the  public  credit,  wherein  the  constitutional 
right  of  the  Lower  House  to  orginate  money  bills  was  sup- 
posed to  be  threatened,  or  whether  the  Executive  interest  was 
strengthened  for  a  new  victory  by  the  triumph  it  had  lately 
scored,  under  Madison's  leadership,  on  the  subject  of  remov- 
als, the  principle  of  direct  intercourse  had  an  easy  triumph. 
On  the  day  when  this  section  of  the  bill  was  voted  upon, 
June  25,  Fisher  Ames  wrote  to  one  of  his  political  friends: 
"A  puerile  debate  arose,  whether  the  Secretary  of  the  Treas- 
ury should  be  allowed  to  exhibit  his  reports  and  statements 
to  the  Legislature.  The  champions  of  liberty  drew  their 
swords,  talked  blank  verse  about  Treasury  influence,  a  min- 


220  READINGS  IN  CIVIL  GOVERNMENT 

istry,  violation  of  the  privileges  of  the  House  by  giving  him 
a  hearing  from  time  to  time.  They  persevered  so  long  and 
furiously  that  they  lost  all  strength,  and  were  left  in  a  very 
small  minority.  The  clause  permitting  this  liberty  passed. " 
The  only  result  of  this  debate  was  to  change  the  words 
''digest  and  report"  to  "digest  and  prepare. " 

Everybody  knows  that,  notwithstanding  this  provision, 
looking  to  direct  communication  between  Congress  and  the 
Treasury,  no  Secretary  of  the  Treasury  has  ever  reported 
to  Congress  in  person.  Many  persons  suppose  that  jealousy 
of  the  powers  of  the  Department  caused  the  provision  to  be  a 
dead  letter  from  the  beginning.  What  are  the  ascertainable 
facts  about  the  matter?  The  House  of  Representatives, 
shortly  before  the  adjournment  of  its  first  session,  passed 
a  resolution  that  the  Secretary  of  the  Treasury  be  directed 
to  prepare  a  plan  for  the  support  of  the  public  credit,  and 
report  the  same  at  its  next  meeting.  At  the  opening  of  the 
second  session,  the  Speaker  communicated  a  letter  announc- 
ing that  the  Secretary  of  the  Treasury  was  ready.  Gerry, 
of  Massachusetts,  moved  that  the  report  be  submitted  in  writ- 
ing; but  of  the  five  members  recorded  as  taking  part  in  the 
debate,  Clymer,  of  Pennsylvania,  was  the  only  one  who  ex- 
pressed doubts  as  to  the  propriety  of  oral  communication 
from  so  great  an  officer.  Fisher  Ames,  the  consistent  friend 
of  the  Executive,  thought  that  this  particular  report  ought 
to  be  in  writing;  because  the  more  permanent  form  was  more 
likely  to  insure  the  responsibility  of  the  Secretary,  while  at 
the  same  time  it  would  be  less  liable  to  be  misunderstood. 
This  latter  point  was  elaborated  by  Gerry  in  a  closing  speech. 
In  a  plan  for  supporting  public  credit,  might  be  compre- 
hended every  species  of  finance.  Could  the  human  mind  re- 
tain with  any  degree  of  precision  objects  so  extensive  and 
multifarious  upon  a  mere  oral  communication?  These  con- 
siderations alone  ought  to  be  sufficient  to  induce  gentlemen 
to  agree  to  this  proposition  of  making  the  report  in  writing. 
With  this  it  was  decided  that  the  first  of  Hamilton's  great 
reports  should  be  submitted  in  writing. 


THE  EXECUTIVE  DEPARTMENTS  221 

It  seems,  from  the  foregoing  facts,  that  the  First  Congress 
did  not  directly  face  the  question  of  personal  communication 
with  the  heads  of  departments  in  any  of  its  debates.  But 
the  Second  one  met  it  squarely  in  a  series  of  discussions  that 
occurred  on  November  13,  14,  19  and  20,  1792.  Inasmuch 
as  it  was  the  action  taken  on  this  occasion  that  has  settled 
the  practice  of  the  government  on  this  point,  down  to  the 
present  time,  it  is  surprising  that  these  debates  have  received 
so  little  notice.  On  November  13,  1792,  while  the  House  of 
Representatives  was  investigating  the  defeat  of  St.  Clair's 
Indian  expedition,  the  following  resolution  was  introduced: 
"That  the  Secretary  of  the  Treasury  and  the  Secretary  of 
War  be  notified  that  this  House  intend,  on  Wednesday  next, 
to  take  into  consideration  the  report  of  the  committee  ap- 
pointed to  inquire  into  the  causes  of  the  failure  of  the  late 
expedition  under  General  St.  Clair,  to  the  end  that  they  may 
attend  the  House  and  furnish  such  information  as  may  be 
conducive  to  the  due  investigation  of  the  matters  stated  in 
the  said  report."  Eleven  members  spoke  against  the  resolu- 
tion, and  six  in  favor  of  it;  and  the  debate  was  renewed  six 
days  later,  November  19,  on  a  resolution  to  call  upon  the 
Secretary  of  the  Treasury  to  report  a  plan  for  the  reduction 
of  the  public  debt,  no  suggestion  that  he  should  come  to  the 
House  in  person  being  included.  In  both  debates,  Madison 
figured  as  the  leader  of  the  opposition,  saying  that  to  sum- 
mon the  two  Secretaries  would  introduce  a  precedent  that 
would  lead  to  perplexing  and  embarrassing  consequences. 
Accordingly,  he  was  decidedly  in  favor  of  written  information. 
In  his  remarks  against  the  resolution  to  call  upon  the  Secre- 
tary of  the  Treasury  for  a  plan  to  reduce  the  public  debt, 
he  set  up  a  kind  of  defence  for  abandoning  the  role  of  chief 
supporter  of  the  administration  in  the  Lower  House  for  that 
of  leader  of  the  opposition,  by  saying  that  in  the  infancy 
of  the  government  it  might  be  necessary  to  interpret  the 
act  establishing  the  Treasury  Department  with  more  latitude 
than  was  contemplated  when  it  was  passed  but  that  he  could 
see  no  necessity  for  it  at  present.  The  reason  for  Madison's 


222  READINGS  IN  CIVIL  GOVERNMENT 

change  of  front  was  that  he  was  one  of  the  newly-developed 
anti-Hamilton  party.  The  policy  of  the  Secretary  of  the 
Treasury  had  by  this  time  forced  the  issue  that  differentiated 
the  two  great  political  parties.  The  opponents  of  a  strong 
central  government  were  particularly  hostile  to  a  strong 
Executive.  This  was  the  reason  why  the  Second  Congress 
was  more  chary  of  Executive  privileges  than  the  First.  In 
general,  the  enemies  of  the  Treasury  policy  opposed  the 
resolution  to  summon  the  two  Secretaries  to  the  House  of 
Representatives;  but  there  was  one  notable  exception.  El- 
bridge  Gerry,  who  had  been  the  most  pronounced  enemy  of 
the  act  to  establish  the  Treasury  Department,  and  an  oppo- 
nent of  the  proposition  to  make  the  heads  of  departments 
removable  by  the  President  alone,  said  that  he  was  surprised 
at  the  apprehensions  that  some  gentlemen  appeared  to 
entertain  of  the  measure  to  introduce  the  heads  of  depart- 
ments into  the  House ;  for  his  part  he  had  no  such  fears.  The 
Secretaries  would  attend  at  the  orders  of  the  House  merely 
to  give  such  information  as  might  be  required,  and  not  as 
members  or  ministers  to  influence  and  govern  the  determina- 
tion of  the  House.  The  closing  words  might  imply  that  if 
the  Secretaries  were  coming  as  ministers,  Mr.  Gerry  would 
be  opposed  to  it.  But  in  the  debate  six  days  later  he  made 
it  clear  that  he  did  not  fear  them  even  in  this  capacity: 
for,  if  the  influence  of  the  Secretary  was  formidable,  he 
conceived  that  it  would  be  much  more  dangerous  if  exerted 
against  a  committee  than  in  the  whole  House.  Yet  Gerry 
appears  to  have  been  the  only  man  to  see  that  the  proposed 
relation  might  work  to  the  advantage  of  the  Legislature. 
The  motion  to  summon  the  two  Secretaries  was  defeated. 
Secretary  Knox  thereupon  sent  a  letter  to  the  House  allud- 
ing to  his  anxious  expectation  of  some  act  which  would 
enable  him  to  attend  at  the  examination  upon  which  they 
were  about  to  enter.  The  failure  of  the  proposition  had 
added  to  his  solicitude.  Accordingly,  he  felt  himself  called 
upon  to  ask  of  the  justice  of  that  body  that  some  mode 
might  be  devised  whereby  he  might  be  present  during  the 


THE  EXECUTIVE  DEPARTMENTS  223 

inquiry.  Nevertheless,  the  aggrieved  Secretary,  far  from 
founding  any  claim  upon  the  fact  that  he  had  already  visited 
the  House  in  session  eight  times,  did  not  even  mention  it. 
The  only  action  that  the  House  took  was  to  continue  the 
select  committee  that  had  begun  the  investigation.  The 
resolution  to  call  upon  the  Secretary  of  the  Treasury  for 
a  plan  to  reduce  the  public  debt  was  carried. 

45.   DEPARTMENTAL  DEALINGS  WITH  CONGRESSIONAL  COMMITTEES. 

The  members  of  the  Cabinet  having  been  denied  the  privilege  of 
direct  communication  with  Congress  on  the  floor  of  the  Houses,  an 
indirect  method  of  intercourse  arose,  viz.:  communication  between 
the  departments  and  the  committees.  Mr.  L.  G.  McConachie  speaks 
as  follows  of  the  development  of  this  practice: 

During  Washington's  Presidency  members  of  his  cabinet, 
notably  Hamilton  as  Secretary  of  the  Treasury,  had  a  marked 
initiative  in  the  preparation  of  bills  of  which  the  House  soon 
became  jealous.  March  11,  1794,  Madison  wrote  to  Jeffer- 
son: "I  forgot  to  mention  in  my  last  that  the  question 
whether  the  Ways  and  Means  should  be  referred  to  the 
Secretary  of  the  Treasury,  as  heretofore,  or  to  a  committee, 
lately  came  on,  and  decided  the  sense  of  the  House  to  be 
regenerated  on  that  point."  Of  his  own  action  of  Dec.  21, 
1795,  Albert  Gallatin  wrote:  "My  first  step  was  to  have  a 
standing  committee  of  Ways  and  Means  appointed.  That 
this  should  not  have  been  sooner  done  proves  the  existing 
bias  in  favor  of  increasing  as  far  as  possible  the  power  of 
the  Executive  branch."  Feb.  2,  1797,  Speaker  Dayton  ruled 
out  of  order  a  motion  of  Mr.  Coit  that  the  Secretary  of 
the  Treasury  be  directed  to  bring  in  a  bill  upon  imposts  and 
tonnage.  While  the  direct  connection  of  the  Executive  with 
the  House,  and  every  shadow  of  claim  to  the  initiation  of 
laws,  was  thus  early  cut  off,  it  has  always  subsisted  to  a 
greater  or  lesser  degree  in  a  voluntary  way  with  the  com- 
mittees or  with  individuals  as  intermediaries.  John  Quincy 
Adams,  as  Monroe's  Secretary  of  State,  mentions  several 
instances  where  members  of  Congress  came  to  him  to  submit 


224  READINGS  IN  CIVIL  GOVERNMENT 

drafts  of  bills  that  he  might  suggest  modifications  or  obtain 
for  them  the  opinion  of  the  President.  Certain  newspaper 
publications  of  1837  throw  interesting  light  upon  the  draft- 
ing of  bills  in  the  times  of  Jackson  and  Van  Buren.  The 
Atlas  and  other  Boston  papers  reported  Richard  Fletcher,  a 
member  of  the  House  Ways  and  Means,  as  declaring  in  a 
speech  at  Faneuil  Hall  during  the  summer  recess:  "The 
Chairman  of  the  committee  steps  up  to  the  White  House, 
and  there  receives  from  the  President  or  the  Secretary  of  the 
Treasury  such  bills  as  they  wish  to  have  passed  by  the 
House.  The  chairman  puts  the  bills  in  his  pocket ;  takes  them 
to  the  committee  without  any  examination;  the  majority 
of  the  committee  approve  them ;  the  minority  can  do  nothing ; 
the  bills  are  presented  to  the  House,  and  received  as  the 
doings  of  the  committee. "  Upon  the  reassembling  of  Con- 
gress, Chairman  Churchill  C.  Cambreleng  of  the  Ways  and 
Means  published  in  the  Washington  Globe  a  reply  to  this  and 
other  charges  of  the  Boston  speech.  "The  usage  from  the 
commencement  of  the  government,"  said  he,  "has  been  for 
the  committee,  through  its  chairman,  to  consult  the  head  of 
the  Department  in  regard  to  such  measures  as  he  may  recom- 
mend for  the  consideration  of  Congress;  for  the  Secretary 
to  attend  on,  and  confer  with  the  committee,  if  invited,  and 
to  furnish  drafts  of  bills  embracing  his  own  propositions, 
when  requested  to  do  so."  He  denied,  however,  the  slavish 
acceptance  of  Executive  measure  "word  for  word,  letter  for 
letter,  comma  for  comma";  cited  in  proof  the  history  of 
several  bills ;  and  presented  in  parallel  columns  the  Secretary 's 
draft  of  one  of  them,  with  its  modified  form  as  reported 
from  the  Ways  and  Means.  Recent  examples  of  this  practice 
are  to  be  had  in  the  presentation  to  the  Ways  and  Means 
of  suggested  amendments  to  the  Administrative  Customs 
Act  by  Charles  S.  Hamlin,  Assistant-Secretary  of  the 
Treasury,  and  in  the  comments  on  the  Wilbur  Filled-Cheese 
Bill  sent  in  to  the  same  committee  by  Henry  E.  Alford, 
Chief  of  the  Dairy  Division  in  the  Department  of  Agricul- 
ture. There  are  many  avenues  leading  from  the  Depart-1 


THE  EXECUTIVE  DEPARTMENTS  225 

ments  to  the  Capitol;  what  cannot  find  an  entrance  through 
the  House  comes  in  by  way  of  the  Senate.  "It  is  a  favorite 
scheme,"  says  Chairman  Cannon,  "for  Executive  officers, 
when  they  cannot  get  appropriations  recommended  under 
the  jurisdiction  of  one  committee,  to  shift  around,  and  submit 
estimates  so  that  they  will  come  in  under  another  committee." 
Where  a  party  has  been  in  possession  of  the  Presidency 
and  the  House  at  the  same  time,  the  influence  of  the  Executive 
in  the  choice  of  the  Speaker,  and  consequently  in  the  com- 
position of  the  committees  upon  questions  which  divide  the 
party  into  two  wings,  has  often  been  direct  and  powerful. 
The  contest  of  James  K.  Polk  and  John  Bell  for  the  Speaker- 
ship  in  1835  is  a  case  in  evidence.  Earlier,  John  Quincy 
Adams  found  his  administration  handicapped  in  its  beginning 
by  the  organization  of  all  the  committees  of  Congress  in 
favor  of  his  beaten  rival,  Andrew  Jackson.  "I  rather 
think  that  the  House  will  be  organized  by  the  election  of  a 
Speaker  who  will  consult  the  President  and  Cabinet  in  the 
appointment  of  the  committees,"  says  a  correspondent  of  the 
New  York  Herald  in  1853.  Stephen  A.  Douglas,  accord- 
ing to  Henry  Wilson,  was  put  down  from  his  committee 
chairmanship  in  the  Senate  at  the  bidding  of  Buchanan's 
administration.  One  committee  of  the  House  stands  on  a 
peculiar  footing  as  regards  relations  with  the  Executive; 
namely,  the  Foreign  Affairs.  The  trickery  of  the  chairman 
of  the  Ways  and  Means,  John  Randolph,  in  failing  to  report 
on  Jefferson's  message  with  reference  to  the  conduct  of 
European  belligerents,  and  in  delaying  the  appropriation 
bills  so  as  to  prevent  the  purchase  of  Florida,  and  his  punish- 
ment therefor,  are  cited  elsewhere.  Later,  in  1819,  when  this 
same  purchase  was  under  more  successful  negotiation,  the 
chairman  of  the  Foreign  Affairs  seems  to  have  attended  a 
meeting  of  the  Cabinet  and  set  forth  his  views.  In  a  debate 
on  the  deposing  of  Edward  Everett  from  the  chairmanship  of 
Foreign  Affairs,  one  speaker  urged  that  the  chairmen  of  that 
committee  especially,  and  of  other  important  House  commit- 
tees generally,  ought  to  be  "men  who  were  in  confidential 
15 


226  READINGS  IN  CIVIL  GOVERNMENT 

relations  with  the  government";  and  another  speaker,  ''that 
every  committee  of  the  House  was  the  organ  exclusively  of  the 
House,  and  as  such  it  owed  no  duty  elsewhere."  Speaker 
Bell,  defending  himself  against  the  charge  of  subserviency  to 
Jackson  on  this  occasion,  declared  that  he  had  acted  upon  a 
principle  which  he  had  once  heard  enunciated  by  John 
Quincy  Adams,  to  the  effect  that  if  ours  is  to  be  a  practicable 
government,  the  several  departments  must  be  regarded  not 
only  as  co-ordinate,  but  also  as  to  a  due  degree  co-operat i < •• . 
The  same  thought  is  expressed  by  The  Nation  in  commenting 
upon  the  removal,  after  ten  years  of  service,  of  Charles  Sum- 
ner  from  the  chairmanship  of  Foreign  Affairs  in  the  Senate, 
because  of  his  opposition  to  General  Grant 's  desire  for  the 
purchase  of  San  Domingo.  The  newspapers  of  June,  1896, 
noted  as  to  the  Cuban  Question,  the  fact  that  President 
Cleveland  had  met  the  Foreign  Affairs  of  the  House,  and 
satisfied  it  concerning  his  attitude  upon  the  recognition  of 
belligerency. 


46.   SHOULD  MEMBERS  OP  THE  CABINET  HAVE  SEATS  IN  CONGRESS? 

Since  it  is  inevitable  that  there  must  be  some  kind  of  inter-com- 
munication and  cooperation  between  the  departmental  heads  and 
Congress,  cannot  some  plan  be  devised  by  which  this  influence  may 
be  exerted  more  openly,  publicly,  and  effectively  than  by  the  present 
method  of  communication  between  the  secretaries  and  committees? 
In  1881  a  report  was  submitted  to  the  Senate  by  Senator  Pendleton 
advocating  the  admission  of  the  members  of  the  Cabinet  to  seats  in 
Congress.  In  the  following  selection  Mr.  Gamaliel  Bradford  up- 
holds the  principle  of  this  report  in  answer  to  the  objections  made 
by  Mr.  Freeman  Snow:  [1893]. 

The  fundamental  difference  between  the  governments  of 
Great  Britain  and  the  United  States  consists  in  this,  that 
in  the  latter  the  Executive  is  a  President,  elected  every  four 
years  by  the  majority  of  the  whole  nation.  The  interven- 
tion of  presidential  electors  has  become  a  mere  form ;  and  the 
election  by  States,  though  it  differs  somewhat,  does  not  differ 
greatly  from  a  popular  vote.  The  Queen  of  Great  Britain 


THE  EXECUTIVE  DEPARTMENTS  227 

reigns  by  hereditary  descent,  and  is  dependent  for  her  posi- 
tion neither  upon  Parliament  nor  the  people.  As  an  offset  to 
this  the  crown  has  been  deprived  of  all  but  nominal  power, 
though  its  influence  is  undoubtedly  still  considerable.  The 
real  executive,  as  Mr.  Bagehot  has  clearly  shown,  is  the 
ministry,  which  is  in  effect  a  committee  of  Parliament. 
When  one  ministry  goes  out,  the  leader  of  the  opposition  is 
invited  by  the  Queen  to  form  a  new  ministry.  If  he  thinks  he 
can  command  a  majority,  he  invites  certain  other  leading  men 
to  join  him,  which  they  will  only  do  upon  condition  of  his 
supporting  them,  so  that  if  any  one  of  them  is  defeated  the 
whole  ministry  will  resign.  Every  effort  is  therefore  directed 
to  maintaining  the  party  majority,  and  how  difficult  this  is, 
is  shown  by  comparison  of  the  groups  and  the  constantly- 
changing  ministries  in  France.  It  is  a  condition  of  unstable 
equilibrium.  Our  Cabinet  officers,  on  the  other  hand,  are 
the  direct  appointees  of  the  President.  So  far  from  being 
irresponsible,  they  are  jointly  and  severally,  as  well  as 
absolutely,  responsible  to  him.  He  can  change  one  or  all  of 
them  at  his  pleasure,  subject  only  to  the  consent  of  the 
Senate,  which  has  very  rarely  been,  and  under  the  circum- 
stances herein  proposed,  never  would  be  refused,  unless  in 
very  extreme  cases.  But  the  President  is  himself  responsible 
to  the  nation,  and  therefore  his  Cabinet  is  so  also.  In  other 
words,  he  appoints  its  members,  subject  to  his  responsibility 
to  the  majority  of  the  nation.  The  Cabinet  is,  therefore, 
irresponsible  only  as  regards  Congress.  It  has  its  own 
separate  responsibility  to  the  people  precisely  as  Congress 
has,  but  with  this  difference,  that  the  constituents  of  the 
Cabinet  are  the  majority  of  the  whole  nation,  acting  through 
the  President,  while  the  constituents  of  each  Congressman  are 
only  the  majority  of  his  own  district,  and  of  each  Senator 
only  the  majority  of  his  own  State  Legislature.  This  fact 
of  the  separate  and  direct  responsibility  of  both  executive 
and  legislature  to  the  common  arbiter  and  sovereign,  the 
people,  is  of  immense  importance,  and  like  nothing  else  in  the 
world.  From  their  responsibility  to  the  President  alone  it 


228  READINGS  IN  CIVIL  GOVERNMENT 

follows  that  the  members  of  the  Cabinet  need  stand  in  no 
fear  of  Congress,  or  to  resign  in  case  of  an  adverse  vote.  If, 
indeed,  the  President  felt  that  one  or  more  members  of  the 
Cabinet  had  proved  to  be  incompetent,  he  could,  and  probably 
would,  change  them  at  his  pleasure.  But,  if  otherwise,  he 
could  uphold  them  against  any  adverse  majority  in  one  or 
both  Houses.  The  defeated  member  could  either  abandon 
the  rejected  measure  under  protest  and  appeal  to  the  coun- 
try, or  could  modify  it,  still  under  protest,  till  the  majority 
would  accept  it,  or  could  drop  the  subject,  and,  content- 
ing himself  with  existing  legislation,  go  on  to  something 
else  till  the  verdict  of  the  people  was  pronounced  at  the 
next  election.  But  there  would  be  no  more  necessity  of  his 
resigning  than  there  is  now.  From  the  fact  that  both  Con- 
gress and  the  Executive  have  a  separate  and  independent 
responsibility  to  the  people,  as  also  from  the  much  wider  and 
more  numerous  constituency  of  the  Executive,  it  would  fol- 
low that  Congress  would  be  much  less  dominant  and  dic- 
tatorial in  its  relations  to  the  Executive  than  it  is  at  present, 
or  than  is  the  British  House  of  Commons,  or  the  French 
Chamber  of  Deputies.  Nobody  doubts  that  members  of 
Congress  are  sensitive  enough  to  any  manifestation  of  the 
will  of  their  constituents.  The  trouble  is  that  with  the 
present  methods  of  government  by  the  lobby  and  secret  com- 
mittees, there  is  no  opportunity  for  the  formation  or  the 
expression  of  public  opinion.  But  if  one  of  the  President's 
lieutenants,  felt  by  every  part  of  the  country  to  be  the 
agent  of  the  whole,  were  to  stand  up  in  open  Congress  to 
express  his  views  and  plans  upon  any  public  question,  and 
these  were  discussed  by  the  press  of  the  whole  country,  itself 
anxious  to  conform  to  and  express  public  opinion,  members 
of  Congress  would  be  exceedingly  careful  about  factious 
opposition  in  the  face  of  such  a  power  as  that.  So  long  as 
a  secretary  could  maintain  the  conviction  of  his  purity  and 
elevation  of  character,  even  though  his  ability  was  not  of 
the  highest,  he  would  be  safe  from  bullying  and  sure  of 
respectful  treatment.  It  would  be  only  trickery  or  dishonest 


THE  EXECUTIVE  DEPARTMENTS  229 

collusion  with  private  interests,  which  ensure  his  speedy 
downfall.  .  .  . 

Perhaps  the  best  wray  to  discuss  Mr.  Snow's  argument  will 
be  to  take  a  concrete  case,  and  trace  its  probable  working; 
and  the  tariff,  at  once  by  its  complexity  and  its  universal 
national  interest,  offers  a  good  example.  Suppose  that  when 
Congress  meets,  the  Secretary  of  the  Treasury,  by  invitation 
of  the  House  of  Representatives,  in  accordance  with  the 
Pendleton  Bill,  should  appear  and  take  his  seat  near  the 
speaker's  desk.  The  first  thing  to  be  noted  is,  that  it  is  not 
at  all  necessary  that  he  should  be  a  member  of  the  House.  He 
is  simply  an  agent  of  the  administration,  having  no  vote, 
but  presenting  the  wants  of  the  treasury,  and  the  effect  of 
the  existing  tariff  upon  the  financial  interests  of  the  coun- 
try. Observe,  again,  how  different  his  position  would  be 
from  that  of  appearing  before  a  committee,  say,  of  Ways  and 
Means.  The  committee  is  not  a  place  for  debate.  It  does 
not  care  to  argue  with  the  secretary.  With  its  inherent 
jealousy  of  the  Executive,  it  does  not  care  what  he  has  to 
say.  For  form's  sake,  it  listens  to  him,  perhaps  asks  him  a 
few  questions,  and  then  dismisses  him  and  conducts  its  de- 
liberations and  forms  its  decision  upon  motives  which  the 
country  never  sees  or  understands  at  all.  But  the  House  is 
the  place  for  debate.  Every  word  that  the  secretary  said 
there  would  be  reported,  and  his  language  and  bearing  dis- 
cussed in  almost  every  newspaper  in  the  United  States.  Mr. 
Snow  cannot  see  how  the  President  represents  the  whole 
country  any  more  than  Congress.  The  simplest  appeal  to 
fact  shows  that  the  President  excites  equal  interest  in  Maine 
and  Louisiana,  in  Wisconsin  and  Florida,  in  Virginia  and 
California.  The  speaker  and  the  Chairman  of  Ways  and 
Means  are  perhaps  the  most  important  members  of  the  House. 
But  they  represent  each  precisely  one  three-hundredth  and 
fifty-sixth  part  of  the  country,  and  the  rest  of  it,  except  from 
the  point  of  view  of  party  politics,  cares  very  little  what 
either  of  them  thinks  or  says.  .  .  . 

But  we  have  left  the  secretary  waiting,  and  it  is  time  for 


230  READINGS  IN  CIVIL  GOVERNMENT 

him  to  speak.  He  rises  in  his  place,  and  it  is  safe  to  say 
the  speaker  will  recognize  him  without  regard  to  party,  greatly 
to  the  disgust  of  members  who  cannot  get  the  same  oppor- 
tunity. He  does  not  embark  upon  a  radical  reform  of  the 
tariff,  but  proposes  a  few  changes  of  detail,  among  others, 
for  example,  free  wool,  and  makes  those  a  pretext  for  a 
discussion  of  the  whole  subject.  If  a  private  member  had 
made  the  same  proposal  it  would  be  referred  with  a  hundred 
others  to  the  appropriate  committee.  The  author  would 
be  divorced  from  his  measure,  and  the  latter  would  disappear, 
perhaps  for  months,  and  if  ever  heard  of  again,  it  would 
be  as  a  part  of  an  elaborate  bill,  prepared  by  the  commit- 
tee, upon  motives  and  considerations  of  which  the  country 
would  know  nothing.  Mr.  Snow  would  probably  say  that  the 
secretary's  proposal  would  be  referred  in  the  same  way.  But 
he  is  a  very  different  individual.  In  the  course  of  his 
speech  he  would  insist  respectfully  but  earnestly,  upon  the 
importance  of  immediate  public  discussion,  and  would  close 
with  submitting  a  resolution  to  that  effect.  Some  members 
of  his  party,  seeing  the  political  capital  to  be  made,  would 
support  the  resolution.  The  opposition  would  at  once  see 
that  with  the  secretary's  speech  published  all  over  the 
country,  it  would  be  too  dangerous  to  try  to  stifle  it  by 
reference  to  a  committee,  and  that  they  had  got  to  take  the 
bull  by  the  horns.  They  would  be  anxious  as  to  the  charac- 
ter of  the  debate.  It  would  never  do  to  let  any  blatant  mem- 
ber who  could  catch  the  speaker's  eye  damage  the  party  and 
the  cause  by  displaying  his  ignorance.  They  would  go  into 
caucus  to  select  their  best  man  to  conduct  the  debate,  and 
in  a  general  way  the  speakers  to  follow  him.  The  House 
wrould  be  divided  into  two  organized  and  disciplined  bodies 
under  their  respective  leaders,  ready  to  join  battle  in  a 
discussion  of  principles  before  the  whole  country  looking  on 
with  the  most  intense  interest.  Cannot  Mr.  Snow  see  how 
the  "advice  and  suggestion "•  of  the  Pendleton  Report  might 
develop  into  something  vastly  more  important,  and  that  such 


THE  EXECUTIVE  DEPARTMENTS  231 

are  "the  obvious  advantages"  which  the  author  of  that 
report  pointed  to  but  did  not  see  fit  to  discuss? 

We  will  suppose  that  while  the  regular  business  of  the 
session  was  going  on  this  discussion  was  kept  up  for  two  or 
three  months.  The  country,  as  a  whole,  would  learn  more 
and  come  to  more  definite  conclusions  than  from  all  the 
effects  of  local  writers  and  speakers,  including  members  of 
Congress,  in  as  many  years,  from  which,  indeed,  it  probably 
does  not  learn  anything  at  all.  There  would  be  added  the 
immense  force  of  personality.  Members  would  come  before 
their  constituents  through  their  speeches  and  votes  in  a  totally 
different  light  and  have  a  chance  of  standing  on  their  own 
feet,  instead  of  being  the  mere  nominees  of  a  party  conven- 
tion. The  whole  country  would  begin  to  take  sides  with  the 
secretary  and  the  President  behind  him  on  the  one  part,  and 
the  leader  of  opposition  and  his  followers  on  the  other.  The 
elections  would  begin  to  take  on  a  wholly  different  character. 

Suppose  next  that  after  a  three  months'  debate  a  vote  was 
taken,  and  the  secretary's  proposals  defeated  by  a  large 
majority.  It  would  not  be  necessary  for  the  Cabinet  or 
even  the  secretary  to  resign.  The  President  might  say  to 
the  latter  in  private,  "You  have  done  well.  Now  help  on 
the  business  of  the  session  with  tact  and  prudence,  and 
we  will  see  what  another  year  may  bring  forth."  Or  he 
might  conclude  that  the  secretary  was  not  up  to  his  work,  ask 
for  his  resignation  privately,  and  invite  the  member  of  the 
same  party  who  had  been  most  prominent  and  effective  in  the 
debate  to  take  his  place,  and  any  member  would  gladly 
resign  (reserving  his  chance  of  subsequent  re-election  when 
out  of  office)  for  a  post  of  such  distinction  as  the  Cabinet 
would  then  offer. 

These  ramifications  might  be  followed  out  indefinitely  to 
meet  possible  objections,  but  there  is  one  important  considera- 
tion, that  if  the  experiment  did  not  work  satisfactorily,  the 
House  at  the  end  of  the  session  would  need  only  to  rescind 
the  resolution,  inviting  the  presence  of  the  Secretary  and 


232  READINGS  IN  CIVIL  GOVERNMENT 

the  present  condition  of  things  would  be  restored.  The  ques- 
tion presents  itself,  why  a  measure  recommended  unanimously 
by  eight  Senators  from  both  parties  as  offering  "obvious 
advantages, ' '  so  easily  tried  and  set  aside  if  it  fails,  has  never 
received  the  slightest  attention  from  Congress. 

47.    CIVIL   SERVICE  REFORM. 

When  Thomas  Jefferson  became  President  in  1801,  he  announced 
that  his  policy  with  regard  to  appointments  would  be  to  equalize  the 
offices  between  the  two  parties  and  then  to  "return  with  joy  to  that 
state  of  things  when  the  only  question  concerning  a  candidate  shall 
be,  is  he  honest?  Is  he  capable?  Is  he  faithful  to  the  Constitu- 
tion?" It  is  needless  to  say  that  this  happy  "state  of  things"  was 
never  realized  even  by  Mr.  Jefferson  himself.  On  the  contrary,  as 
the  service  grew  in  numbers,  appointments  were  made  more  and 
more  on  purely  political  grounds  until  in  the  time  of  Andrew  Jack- 
son the  statement  of  William  Marcy  was  nearer  the  truth,  "to  the 
victors  belong  the  spoils."  In  the  following  selection  Professor  J. 
A.  Fairlie  describes  the  events  leading  to  the  adoption  of  the  merit 
system  and  its  effect  upon  the  civil  service: 

Entrance  to  subordinate  positions  in  the  national  adminis- 
tration is  now  in  large  measure  regulated  by  the  Civil  Service 
Commission,  which  also  has  important  powers  to  prevent 
abuses  in  the  administrative  service.  To  understand  the  pur- 
poses and  methods  of  the  commission,  it  is  necessary  to  note 
former  conditions,  and  to  trace  the  development  of  measures 
for  improvement. 

Appointments  to  subordinate  positions  have  been  made 
from  the  beginning  to  the  national  government  by  the  heads 
of  departments,  in  most  cases  on  the  nomination  of  chiefs 
of  bureaus  or  the  principal  local  officials  under  whom  the 
persons  employed  perform  their  duties.  But  the  recom- 
mendations of  members  of  Congress  early  became  an  impor- 
tant factor  in  securing  positions;  and  with  the  development 
of  party  organization  the  influence  of  party  managers  came 
to  be  of  great  weight,  especially  in  districts  where  the  local 
member  of  Congress  was  not  in  political  accord  with  the 
President. 


THE  EXECUTIVE  DEPARTMENTS  233 

From  the  beginning  there  has  been  no  definite  term  for  such 
subordinate  positions ;  but  they  are  held  subject  to  the  removal 
power  of  the  appointing  authority.  There  is  no  exact  record 
of  removals  of  employes;  but  it  seems  clear  that  at  first  the 
tenure  in  all  cases  was  practically  one  of  good  behavior. 
The  political  removals  from  presidential  offices  by  Jefferson 
was  probably  followed  by  removals  of  the  same  kind  from 
minor  posts.  More  certainly  there  were  large  numbers  of 
political  removals  throughout  the  administrative  service  when 
Jackson  became  President  in  1829.  The  total  number  in  the 
first  year  of  Jackson's  term  has  been  estimated  at  2,000 
out  of  25,000  positions  then  under  the  national  government. 
From  this  time,  with  the  development  of  political  removals 
from  presidential  offices,  the  same  custom  came  to  be  more 
and  more  systematically  followed  for  all  grades  of  employes. 
It  seems  probable  that  removals  from  minor  posts  were 
always  less  in  proportion  than  from  the  higher  offices.  But 
enough  was  done  to  disorganize  and  demoralize  many  branches 
of  the  administration  with  every  party  change  in  the  presi- 
dency; and  a  good  deal  in  the  same  direction  at  every  new 
administration. 

A  small  step  towards  better  conditions  was  taken  in  1853, 
when  the  clerks  in  the  department  offices  at  "Washington  with 
salaries  from  $1,300  to  $1,800  were  grouped  into  four 
classes;  and  it  was  provided  that  persons  appointed  to  this 
"classified  service"  should  be  required  to  take  an  examina- 
tion conducted  by  an  examining  board  in  each  department. 
These  examinations  were,  however,  limited  to  those  previously 
selected  for  positions ;  and  often  had  no  relation  either  to  the 
candidates'  ability  in  general  or  their  qualifications  for  par- 
ticular posts. 

In  1864  provision  was  made  for  a  small  force  of  consular 
clerks  appointed  after  examinations.  After  this  time  various 
attempts  were  made  in  Congress  to  secure  the  establishment 
of  a  permanent  commission  to  control  admission  to  the 
administrative  service.  President  Grant  supported  this  plan ; 


234:  READINGS  IN  CIVIL  GOVERNMENT 

and  in  1871  an  act  was  passed  authorizing  the  President  to 
appoint  a  commission  for  this  purpose. 

The  commission,  of  which  George  William  Curtis  was  chair- 
man, framed  rules  based  on  the  principle  of  competitive 
examinations  open  to  all  applicants.  But  in  two  years  the 
appropriation  for  the  commission  was  defeated  in  Congress; 
and  the  new  system  had  to  be  given  up  for  the  time.  It 
was,  however,  established  in  a  few  of  the  largest  local  offices, 
such  as  the  custom  house  and  post-office  in  New  York;  and 
also,  after  1877,  in  the  department  of  the  Interior  by  Secre- 
tary Carl  Schurz. 

On  the  assassination  of  President  Garfield  by  a  disappointed 
office  seeker,  public  opinion  was  aroused  against  the  prevail- 
ing method  of  patronage  appointments.  But  it  was  not  until 
nearly  two  years  later,  in  1883,  that  an  act  was  finally  passed 
which  forms  the  basis  for  the  present  system. 

This  act  was  similar  to  that  of  1871.  It  did  not  directly 
restrict  removals,  nor  did  it  of  itself  establish  a  new  system  of 
controlling  appointments.  It  provided  for  a  commission  of 
three  persons,  not  more  than  two  of  the  same  political  party, 
to  be  appointed  by  the  President  and  Senate.  This  commis- 
sion was  to  frame  rules  regulating  admission  to  positions  in 
the  classified  service,  which  should  become  effective  when 
promulgated  by  the  President.  The  act  also  provided  that  the 
rules  should  require  competitive  examinations  and  proba- 
tionary appointments,  to  test  the  capacity  and  fitness  of  can- 
didates, but  with  a  preference  for  members  of  the  army  and 
navy  disabled  in  the  service.  It  also  prohibited  recommenda- 
tions from  members  of  Congress;  required  appointments  to 
be  apportioned  to  the  states  and  territories  on  the  basis  of 
population,  and  restricted  the  levy  of  political  assessments 
from  government  officials  and  employes. 

Under  the  rules  first  adopted  competitive  examinations  were 
required  for  new  appointments  to  some  14,000  positions  in  the 
department  offices  at  Washington  and  the  large  custom  houses 
and  post-offices.  Since  then  the  number  of  competitive 


THE  EXECUTIVE  DEPARTMENTS  235 

places  has  been  steadily  increased,  partly  by  the  growth  of  the 
government  service,  partly  by  new  rules  extending  the  com- 
petitive system  to  new  classes  of  positions.  The  most  notable 
increase  was  that  made  by  the  "blanket  order"  of  President 
Cleveland  in  May,  1896.  President  Eoosevelt,  who  was  a 
member  of  the  commission  for  six  years,  has  made  impor- 
tant extensions  and  has  greatly  strengthened  the  merit  system 
by  other  changes  in  the  regulations. 

In  1904  there  were  135,000  positions  subject  to  competitive 
examinations,  out  of  280,000  positions  in  the  executive  civil 
service.  The  salaries  for  the  competitive  positions  aggregate 
about  two-thirds  of  the  total  expenditure  of  $180,000,000 
for  salaries.  The  non-competitive  positions  include  the 
presidential  offices,  certain  minor  offices,  employes  whose 
duties  are  of  an  important,  confidential  or  fiduciary  nature, 
the  70,000  fourth  class  postmasters  and  laborers. 

The  classified  service  is  divided  into  seven  main  groups; 
the  departmental  service,  the  custom  house  service,  the  post- 
office  service,  the  railway  mail  service,  the  Indian  service, 
the  internal  revenue  service,  and  the  government  printing 
service.  The  departmental  and  post-office  services  each  in- 
clude more  than  forty  per  cent,  of  the  total  number  of  com- 
petitive positions;  while  the  other  five  divisions  together 
have  less  than  twenty  per  cent.  The  Civil  Service  Commis- 
sion also  groups  the  positions  into  eleven  .classes  on  the 
basis  of  salary.  About  one-third  of  those  in  the  classified 
service  receive  less  than  $720  a  year ;  another  third  from  $720 
to  $1,200;  and  the  remainder  over  $1,200.  In  1903  there 
were  1,428  positions  (including  presidential  offices)  with  a 
salary  of  $2,500  or  more. 

Examinations  of  applicants  for  positions  are  held  in  every 
state  and  territory  at  least  twice  a  year  under  the  direction  of 
the  Chief  Examiner  of  the  Commission.  Local  boards  of 
examiners  have  been  selected  from  the  government  employes 
at  each  of  the  places  where  examinations  were  held;  but 
since  1902  it  has  been  the  policy  of  the  commission  to  consoli- 


236  READINGS  IN  CIVIL  GOVERNMENT 

date  local  boards  in  neighboring  places  and  to  establish  civil 
service  districts,  conducting  all  the  examinations  in  each 
district  from  a  central  point. 

There  are  hundreds  of  different  examinations  for  the 
great  variety  of  positions;  but  these  may  be  grouped  into 
three  principal  classes.  For  a  considerable  proportion  of 
positions,  such  as  janitors,  firemen,  apprentices,  messengers, 
watchmen  and  the  like,  the  examinations  simply  cover  physical 
qualifications  and  experience,  with  no  educational  test.  And 
as  this  class  of  employes  change  very  frequently,  nearly 
half  of  the  new  appointments  each  year  are  to  such  positions. 
The  largest  class  of  positions  are  those  of  a  clerical  nature, 
where  the  examinations  require  a  good  common  school  educa- 
tion, and  sometimes — for  such  places  as  stenographers,  type- 
writers and  bookkeepers — technical  training  of  a  simple 
kind.  More  than  half  of  the  new  appointments  are  to  such 
positions.  The  third  group  consists  of  professional,  scientific 
and  technical  positions,  requiring  a  high  degree  of  specialized 
training.  This  includes  patent  examiners,  engineers,  law 
clerks,  and  experts  in  many  other  lines.  Not  more  than  a 
tenth  of  the  positions  in  the  classified  service  are  in  this 
group ;  and  the  new  appointments  are  a  much  smaller  propor- 
tion. Examinations  for  this  class  of  positions  cover  the 
technical  qualifications,  training  and  experience,  and  for 
some  of  the  highest  posts  the  latter  are  the  most  important 
parts  of  the  examination. 

Eligible  lists  of  candidates  who  have  passed  the  examina- 
tion for  each  kind  of  position  are  prepared,  with  disabled 
veterans  ranking  first,  and  others  in  the  order  of  their  grades 
on  the  examinations.  Vacancies  are  filled  by  the  selection  of 
the  appointing  officer  from  the  three  persons  standing  high- 
est on  the  appropriate  register,  subject  to  the  rules  for  the 
geographical  apportionment  of  appointments.  When  a  name 
has  been  passed  three  times  it  is  dropped  from  the  eligible 
list.  Appointments  are  made  first  for  a  probationary  period 
of  six  months ;  and  at  the  end  of  that  time  the  probationer  is 
either  removed  or  receives  a  permanent  appointment. 


THE  EXECUTIVE  DEPARTMENTS  237 

For  a  time  the  rules  governing  the  entrance  to  the  service 
were  evaded  by  the  system  of  transfers  from  one  office  to 
another.  Before  a  particular  class  of  positions  was  brought 
under  the  competitive  system,  many  political  appointments 
would  be  made,  in  excess  of  the  number  of  employes  required. 
After  the  places  were  brought  under  the  competitive  rules, 
the  additional  appointees  would  be  transferred  to  other  com- 
petitive positions.  Under  the  present  rules,  however,  trans- 
fers are  carefully  regulated. 

Promotions  are  now  governed  by  regulations  for  each 
branch  of  the  civil  service.  These  regulations  provide  for 
further  examinations;  but  also  consider  the  records  of  effi- 
ciency of  the  candidates,  and  in  some  cases  seniority  of  service 
is  given  weight. 

In  the  earliest  rules  the  only  restriction  in  removals  was 
a  vague  provision  that  they  should  not  be  made  for  political 
or  religious  opinions ;  and  no  method  was  provided  for  enforc- 
ing this.  President  McKinley  in  1897  established  a  rule 
that  no  removals  should  be  made  from  the  competitive  service 
except  for  just  cause  and  for  reasons  stated  in  writing,  with 
notice  given  before  removal.  President  Roosevelt  supple- 
mented this  in  1902  with  an  explanatory  statement  that  "just 
cause"  meant  any  cause  not  merely  political  or  religious, 
which  will  promote  the  efficiency  of  the  service ;  and  that  em- 
ployes were  not  guaranteed  a  trial  before  removal. 

With  the  new  system  of  appointments,  which  removes  the 
incentive  to  removals  for  the  purpose  of  creating  a  vacancy 
for  a  patronage  appointment,  there  has  been  a  great  reduc- 
tion in  the  number  of  removals.  Complete  records  are  not 
available ;  but  in  the  railway  mail  service,  where  the  removals 
almost  equalled  the  whole  number  of  employes  between  1885 
and  1889,  there  have  been  only  two  per  cent,  a  year  since 
the  service  has  been  made  competitive. 


238  READINGS  IN  CIVIL  GOVERNMENT 


48.   RECENT  PROGRESS  IN   THE   MERIT   SYSTEM. 

The  following  extract  is  taken  from  the  Twenty-Fifth  Annual 
Report  of  the  Civil  Service  Commission: 

On  June  30,  1908,  the  officers  and  employes  of  the  execu- 
tive civil  service  numbered  approximately  352,000.  Of  this 
number  206,637  are  subject  to  competitive  examination  under 
the  civil  service  rules,  this  being  an  increase  of  12,305  as 
compared  with  the  number  for  the  previous  year.  In  addi- 
tion to  these  classified  employes  there  are  about  6,500  laborers 
subject  to  examination  by  the  Commission  under  the  labor 
regulations.  There  are  also  298  positions  in  the  consular 
service  subject  to  examination  under  regulations  prescribed 
by  the  President.  Of  the  138,500  persons  not  subject  to 
examination,  8,706  are  presidential  appointees,  6,846  of  whom 
are  postmasters  of  the  first,  second,  and  third  classes;  54,312 
are  fourth-class  postmasters;  12,500  are  clerks  at  postoffices 
having  no  free-delivery  service;  24,192  are  mino/  employes, 
chiefly  laborers  on  the  Isthmian  Canal  work,  and  31,500  are 
mere  unskilled  laborers  in  field  services  in  the  United 
States.  .  .  . 

Abuses  arising  from  partisan  activity  of  office  holders  and 
political  assessments  continue  to  diminish.  Very  much  has 
been  gained  in  the  restriction  of  such  abuses  during  the  year, 
even  in  the  midst  of  the  presidential  campaign.  The  civil- 
service  act  declares  that  no  person  in  the  public  service  is 
for  that  reason  under  any  obligations  to  contribute  to  any 
political  fund  or  to  render  any  political  service,  and  every 
such  person  is  forbidden  to  use  his  official  authority  or 
influence  to  coerce  the  political  action  of.  any  person  or 
body.  The  rules,  in  affirming  these  provisions,  forbid  persons 
in  the  service  from  using  their  official  authority  or  influence 
for  the  purpose  of  interfering  with  an  election  or  affecting 
the  result  thereof,  and  prohibit  discrimination  by  any  per- 
son in  the  service  in  favor  of  an  applicant,  eligible,  or  em- 
ploye because  of  his  political  opinions.  Under  the  orders 
issued  by  several  of  the  Presidents,  aiming  at  the  correction 


THE  EXECUTIVE  DEPARTMENTS  239 

of  abuses  arising  from  other  forms  of  political  activity,  en- 
forcement of  the 'rules  was  left  to  the  heads  of  departments 
until  June  15,  1907,  when  Rule  I,  section  1,  was  amended 
by  adding  the  following  prohibition,  which  gave  the  Com- 
mission jurisdiction  over  the  improper  activity  of  employes 
in  the  competitive  service : 

Persons  who  by  the  provisions  of  these  rules  are  in  the  competitive 
classified  service,  while  retaining  the  right  to  vote  as  they  please 
and  to  express  privately  their  opinion  on  all  political  subjects,  shall 
take  no  active  part  in  political  management  or  in  political  cam- 
paigns. 

At  the  time  this  order  was  issued  federal  office  holders 
had  for  so  long  taken  an  active  part  in  politics  that  its 
universal  and  immediate  enforcement  was  impossible.  The 
Commission,  however,  on  March  25,  1908,  addressed  a  letter 
to  the  President  which  read  in  part  as  follows : 

The  Commission,  in  recommending  punishments  for  violations  of 
section  1  of  civil-service  Rule  I,  has  heretofore  been  guided  by  the 
fact  that  the  rule  was  only  adopted  in  June,  1907;  and  that,  while 
the  President's  instructions  prohibiting  political  activity  on  the  part 
of  competitive  classified  employes  have  been  public  ever  since  1902, 
yet  in  actual  practice  the  effective  and  thorough-going  enforcement 
of  the  President's  instructions  in  this  connection  has  only  dated  from 
the  adoption  of  the  rule  in  June  last,  which  gave  the  Civil  Service 
Commission  the  right  to  investigate  and  report  on  charges  of  im- 
proper political  activity  on  the  part  of  those  in  the  competitive 
classified  service.  For  this  reason  the  Commission  has  heretofore 
been  lenient  in  recommending  punishments.  But  a  sufficient  time 
has  now  elapsed  for  us  to  assume  that  the  civil  service  rules  are 
understood  throughout  the  service,  and  we  believe  therefore  that  the 
time  has  also  come  for  a  somewhat  greater  degree  of  severity  in  the 
penalty  inflicted,  at  least  in  aggravated  cases.  We  recommend, 
therefore,  that  the  several  departments  be  requested  to  publish  to 
their  employes  in  the  competitive  classified  service,  the  fact  that 
any  man  violating  the  provisions  of  the  rule  in  question  renders  him- 
self liable  to  punishment  by  removal.  We  desire  that  the  subor- 
dinates in  the  several  departments  be  acquainted  with  this  recommen- 
dation so  that  in  the  event  of  any  misconduct  by  them  in  future, 
the  Commission  may  feel  at  liberty  to  recommend  their  removal. 


240  READINGS  IN  CIVIL  GOVERNMENT 

Accordingly  each  head  of  department  issues  an  order  call- 
ing the  attention  of  employes  to  the  provision  of  the  rule 
and  to  what  the  Commission  had  said  to  the  President. 
The  heads  of  departments  also  issued  the  customary  warn- 
ing against  political  assessments  at  the  outset  of  the  campaign. 
The  issuance  of  these  orders,  the  wide  publicity  given  to  the 
investigations  made  by  the  Commission,  and  the  penalties 
imposed  where  it  was  found  that  employes  had  taken  an 
unduly  active  part  in  political  affairs,  had  a  widely  deterrent 
effect.  The  Commission  is  gratified  in  reporting  that  notwith- 
standing the  intensity  of  interest  in  the  campaign  the 
instances  of  violation  of  the  rules  became  noticeably  less  as 
the  campaign  progressed,  both  in  number  and  in  degree.  It 
was  inevitable  that  there  should  be  much  misunderstanding, 
both  of  the  provisions  of  the  rules  and  of  the  reasons  for 
forbidding  political  activity.  If  unrestrained,  many  em- 
ployes, especially  those  who  were  appointed  for  political  rea- 
sons, because  of  the  selfish  interests  they  have  at  stake,  are 
tempted  to  make  use  of  all  the  influence  they  possess  or  that 
their  office  gives  to  them  to  defeat  the  free  choice  of  the  people. 
The  rule  is  in  the  interest  of  the  employe,  as  it  restores  to 
him  a  real  liberty  of  opinion  and  action  and  prevents  his 
coercion  in  the  interest  of  any  party  or  faction. 

In  the  use  of  the  power  given  to  the  Commission  to  investi- 
gate and  report  upon  violations  of  the  rule  it  is  aimed 
to  place  whatever  limits  are  defined  equally  upon  the 
adherents  of  all  parties,  and  that  officers  belonging  to  the 
party  in  power  shall  not  be  permitted  to  do  things  with 
impunity  which  are  forbidden  to  members  of  the  party  out 
of  power.  The  rule  has  been  construed  to  forbid  the  use  of 
official  positions  for  the  benefit  of  any  of  the  parties  into 
which  the  whole  people  are  divided.  As  to  restrictions  on 
political  activity  of  employes  in  purely  local  affairs,  the 
policy  has  been  to  treat  each  case  upon  its  merits  rather 
than  to  establish  inflexible  rules.  In  case,  for  example,  where 
a  strict  enforcement  of  the  rule  would  result  in  placing  an 
undesirable  element  in  control  of  municipal  affairs  in  the 


THE  EXECUTIVE  DEPARTMENTS  241 

immediate  vicinity  of  a  navy-yard  or  station,  the  Commission 
has  joined  with  the  Navy  Department  in  making  an  excep- 
tion so  far  as  local  municipal  office-holding  was  concerned. 
In  the  course  of  its  decisions  upon  complaints  arising  under 
the  rule  the  following  forms  of  activity  have  been  held  to 
be  forbidden: 

Service  on  political  committees;  service  as  delegates  to 
county,  state,  or  district  conventions  of  a  political  party, 
although  it  was  understood  that  the  employes  were  not  "to 
take  or  use  any  political  activity  in  going  to  these  conven- 
tions, or  otherwise  violate  the  civil-service  rules";  continued 
political  activity  and  leadership;  the  publication  of  a  news- 
paper in  the  interests  of  a  political  party;  holding  office  in 
a  club  which  takes  active  part  in  political  campaigns  and 
management;  the  circulation  of  petitions  having  a  political 
object;  service  as  a  commissioner  of  election  in  a  community 
where  it  was  notorious  that  a  commissioner  of  election  must 
be  an  active  politician;  accepting  nomination  for  a  political 
office  with  intention  of  resigning  from  the  competitive  service 
if  elected ;  recommendation  by  clerks  and  carriers  of  a  person 
to  be  postmaster;  activity  in  local-option  campaigns;  service 
as  inspector  of  election. 

Acting  upon  the  recommendations  of  the  Commission  the 
departments  have  made  removals  in  ten  cases,  have  suspended 
from  employment  without  pay  two  employes,  have  made 
reductions  in  salary  in  three  cases,  and  in  sixteen  others 
have  administered  reprimands  with  a  warning  that  a  repeti- 
tion of  the  offense  would  result  in  removal.  Other  cases  in 
which  the  Commission  recommended  punishment  are  still 
pending  before  the  departments. 

Complaint  was  made  that  competitive  employes  in  the 
customs  service  at  Port  Huron,  Mich.,  had  been  required  for 
a  number  of  years  and  were  still  required  to  contribute  a 
percentage  of  their  salaries  to  be  used  for  political  purposes. 
This  assessment  was  brought  about  under  a  system  by  which 
employes  cashed  their  checks  at  a  certain  bank  in  Port 
Huron,  and  the  cashier  withheld  a  portion  of  the  amount 

16 


242  READINGS  IN  CIVIL  GOVERNMENT 

named  in  the  check.  The  Commission  investigated  the 
matter  and  submitted  its  report  to  the  President  with  the 
result  that  Lincoln  Avery,  collector  of  customs,  was  removed. 
It  appeared  that  Charles  A.  Bailey,  a  special  treasury  agent 
at  that  port,  was  active  politically  and  he  was  also  removed. 

ADDITIONAL  READINGS 

1 — The  Executive  Departments,  Finley  and  Sanderson,  The 
American  Executive,  293-317. 

2 — The  Cabinet,  Bryce,  J.,  American  Commonwealth,  I,  86-96. 

3 — The  Navy  Department  and  its  Work,  Marvin,  W.  L.,  Re- 
view of  Reviews,  XXXVI,  714-22. 

4 — The  American  Consul  and  American  Trade,  Osborne,  J.  B., 
Atlantic  Monthly,  XCIX,  159-70. 

5 — American  Diplomacy,  Lowell,  F.  C.,  Atlantic  Monthly, 
XCVII,  1-7. 

6 — Six  Years  of  Civil  Service,  Roosevelt,  T.,  Scribner's  Maga- 
zine, XVIII,  238-47. 

7 — Why  Patronage  in  Office  is  Un-American,  Lodge,  H.  C., 
The  Century  Magazine,  XL,  837-41. 


CHAPTER  XI 
THE  FEDERAL  JUDICIARY 

49.    TENURE  OP  OFFICE  IN  THE  FEDERAL  COURTS. 

Under  the  old  Confederation  there  was  no  provision  for  a  system 
of  national  courts.  In  creating  such  a  system  as  a  distinct  branch 
of  the  government  the  framers  of  the  Federal  Constitution  sought 
to  make  the  judges  who  should  compose  it  as  independent  of  all  out- 
side influences  as  was  possible.  They  were  to  be  appointed  by  the 
President  and  to  hold  their  places  during  good  behavior.  The  wis- 
dom of  this  latter  provision  is  clearly  demonstrated  by  Alexander 
Hamilton  in  the  following  paper  taken  from  the  Federalist: 

According  to  the  plan  of  the  convention,  all  judges  who 
may  be  appointed  by  the  United  States  are  to  hold  their 
offices  during  good  behavior;  which  is  conformable  to  the 
most  approved  of  the  State  constitutions,  and  among  the  rest, 
to  that  of  this  State.  Its  propriety  having  been  drawn 
into  question  by  the  adversaries  of  that  plan,  is  no  light  symp- 
tom of  the  rage  for  objection,  which  disorders  their  imagina- 
tions and  judgments.  The  standard  of  good  behavior  for 
the  continuance  in  office  of  the  judicial  magistracy,  is  cer- 
tainly one  of  the  most  valuable  of  the  modern  improvements 
in  the  practice  of  government.  In  a  monarchy  it  is  an 
excellent  barrier  to  the  despotism  of  the  prince ;  in  a  republic 
it  is  a  no  less  excellent  barrier  to  the  encroachments  and 
oppressions  of  the  representative  body.  And  it  is  the  best 
expedient  which  can  be  devised  in  any  government,  to  secure 
a  steady,  upright,  and  impartial  administration  of  the 
laws. 

Whoever  attentively  considers  the  different  departments 
of  power  must  perceive,  that,  in  a  government  in  which  they 

243 


244  READINGS  IN  CIVIL  GOVERNMENT 

are  separated  from  each  other,  the  judiciary,  from  the  nature 
of  its  functions,  will  always  be  the  least  dangerous  to  the 
political  rights  of  the  Constitution;  because  it  will  be  least 
in  a  capacity  to  annoy  or  injure  them.  The  Executive  not 
only  dispenses  the  honors,  but  holds  the  sword  of  the  com- 
munity. The  legislature  not  only  commands  the  purse,  but 
prescribes  the  rules  by  which  the  duties  and  rights  of  every 
citizen  are  to  be  regulated.  The  judiciary,  on  the  contrary, 
has  no  influence  over  either  the  sword  or  the  purse ;  no  direc- 
tion either  of  the  strength  or  of  the  wealth  of  the  society; 
and  can  take  no  active  resolution  whatever.  It  may  truly 
be  said  to  have  neither  FORCE  nor  WILL,  but  merely  judg- 
ment ;  and  must  ultimately  depend  upon  the  aid  of  the  execu- 
tive arm  even  for  the  efficacy  of  its  judgments.  .  .  . 

The  complete  independence  of  the  courts  of  justice  is  pecul- 
iarly essential  in  a  limited  Constitution.  By  a  limited  Con- 
stitution, I  understand  one  which  contains  certain  specified 
exceptions  to  the  legislative  authority;  such,  for  instance,  as 
that  it  shall  pass  no  bills  of  attainder,  no  ex  post  facto  laws, 
and  the  like.  Limitations  of  this  kind  can  be  preserved  in 
practice  no  other  way  than  through  the  medium  of  courts  of 
justice,  whose  duty  it  must  be  to  declare  all  acts  contrary 
to  the  manifest  tenor  of  the  Constitution  void.  Without  this, 
all  the  reservations  of  particular  rights  or  privileges  would 
amount  to  nothing. 

Some  perplexity  respecting  the  rights  of  the  courts  to  pro- 
nounce legislative  acts  void,  because  contrary  to  the  Consti- 
tution, has  arisen  from  an  imagination  that  the  doctrine 
would  imply  a  superiority  of  the  judiciary  to  the  legislative 
power.  It  is  urged  that  the  authority  which  can  declare  the 
acts  of  another  void,  must  necessarily  be  superior  to  the  one 
whose  acts  may  be  declared  void.  As  this  doctrine  is  of  great 
importance  in  all  the  American  constitutions,  a  brief  discus- 
sion of  the  ground  on  which  it  rests  cannot  be  unacceptable. 

There  is  no  position  which  depends  on  clearer  principles, 
than  that  every  act  of  a  delegated  authority,  contrary  to  the 
tenor  of  the  commission  under  which  it  is  exercised,  is  void. 


THE  FEDERAL  JUDICIARY  245 

No  legislative  act,  therefore,  contrary  to  the  Constitution, 
can  be  valid.  To  deny  this,  would  be  to  affirm,  that  the 
deputy  is  greater  than  his  principal ;  that  the  servant  is  above 
his  master ;  that  the  representatives  of  the  people  are  superior 
to  the  people  themselves ;  that  men  acting  by  virtue  of  powers, 
may  do  not  only  what  their  powers  do  not  authorize,  but  what 
they  forbid. 

If  it  be  said  that  the  legislative  body  are  themselves  the 
constitutional  judges  of  their  own  powers,  and  that  the  con- 
struction they  put  upon  them  is  conclusive  upon  the  other 
departments,  it  may  be  answered,  that  this  cannot  be  the 
natural  presumption,  where  it  is  not  to  be  collected  from  any 
particular  provisions  in  the  Constitution.  It  is  not  otherwise 
to  be  supposed  that  the  Constitution  could  intend  to  enable 
the  representatives  of  the  people  to  substitute  their  will  to  that 
of  their  constituents.  It  is  far  more  rational  to  suppose, 
that  the  courts  were  designed  to  be  an  intermediate  body 
between  the  people  and  the  legislature,  in  order,  among 
other  things,  to  keep  the  latter  within  the  limits  assigned 
to  their  authority.  The  interpretation  of  the  laws  is  the 
proper  and  peculiar  province  of  the  courts.  A  constitu- 
tion is,  in  fact,  and  must  be  regarded  by  the  judges,  as  a 
fundamental  law.  It  therefore  belongs  to  them  to  ascer- 
tain its  meaning,  as  well  as  the  meaning  of  any  particular 
act  proceeding  from  the  legislative  body.  If  there  should 
happen  to  be  an  irreconcilable  variance  between  the  two, 
that  which  has  the  superior  obligation  and  validity  ought, 
of  course,  to  be  preferred;  or,  in  other  words,  the  Constitu- 
tion ought  to  be  preferred  to  the  statute,  the  intention  of 
the  people  to  the  intention  of  their  agents. 

Nor  does  this  conclusion  by  any  means  suppose  a  supe- 
riority of  the  judicial  to  the  legislative  power.  It  only 
supposes  that  the  power  of  the  people  is  superior  to  both; 
and  that  where  the  will  of  the  legislature,  declared  in  its 
statutes,  stands  in  opposition  to  that  of  the  people,  declared 
in  the  Constitution,  the  judges  ought  to  be  governed  by  the 
latter  rather  than  the  former.  They  ought  to  regulate  their 


246  READINGS  IN  CIVIL  GOVERNMENT 

decisions  by  the  fundamental  laws,  rather  than  by  those 
which  are  not  fundamental.  .  .  . 

If,  then,  the  courts  of  justice  are  to  be  considered  as  the 
bulwarks  of  a  limited  Constitution  against  legislative  en- 
croachments, this  consideration  will  afford  a  strong  argu- 
ment for  the  permanent  tenure  of  judicial  offices,  since 
nothing  will  contribute  so  much  as  this  to  that  independent 
spirit  in  the  judges  which  must  be  essential  to  the  faithful 
performance  of  so  arduous  a  duty.  .  .  . 

But  it  is  not  with  a  view  to  infractions  of  the  Constitu- 
tion only,  that  the  independence  of  the  judges  may  be  an 
essential  safeguard  against  the  effects  of  occasional  ill 
humors  in  the  society.  These  sometimes  extend  no  farther 
than  to  the  injury  of  the  private  rights  of  particular  classes 
of  citizens,  by  unjust  and  partial  laws.  Here  also  the  firm- 
ness of  the  judicial  magistracy  is  of  vast  importance  in 
mitigating  the  severity  and  confining  the  operation  of  such 
laws.  It  not  only  serves  to  moderate  the  immediate  mis- 
chiefs of  those  which  may  have  been  passed,  but  it  operates 
as  a  check  upon  the  legislative  body  in  passing  them;  who, 
perceiving  that  obstacles  to  the  success  of  iniquitous  inten- 
tion are  to  be  expected  from  the  scruples  of  the  courts,  are 
in  a  manner  compelled,  by  the  very  motives  of  the  injustice 
they  meditate,  to  qualify  their  attempts.  This  is  a  cireu in- 
stance calculated  to  have  more  influence  upon  the  character 
of  our  governments,  than  but  few  may  be  aware  of.  The 
benefits  of  the  integrity  and  moderation  of  the  judiciary 
have  already  been  felt  in  more  States  than  one;  and 
though  they  may  have  displeased  those  whose  sinister  ex- 
pectations they  may  have  disappointed,  they  must  have  com- 
manded the  esteem  and  applause  of  all  the  virtuous  and 
disinterested.  Considerate  men,  of  every  description,  ought 
to  prize  whatever  will  tend  to  beget  or  fortify  that  temper 
in  the  courts;  as  no  man  can  be  sure  that  he  may  not  be 
to-morrow  the  victim  of  a  spirit  of  injustice,  by  which  he 
may  be  a  gainer  to-day.  And  every  man  must  now  feel, 
that  the  inevitable  tendency  of  such  a  spirit  is  to  sap  the 


THE  FEDERAL  JUDICIARY  247 

foundations  of  public  and  private  confidence,  and  to  intro- 
duce in  its  stead  universal  distrust  and  distress. 

That  inflexible  and  uniform  adherence  to  the  rights  of 
the  Constitution,  and  of  individuals,  which  we  perceive  to 
be  indispensable  in  the  courts  of  justice,  can  certainly  not 
be  expected  from  judges  who  hold  their  offices  by  a  tem- 
porary commission.  Periodical  appointments,  however  reg- 
ulated, or  by  whomsoever  made,  would,  in  some  way  or 
other,  be  fatal  to  their  necessary  independence.  If  the 
power  of  making  them  was  committed  either  to  the  Execu- 
tive or  legislature,  there  would  be  danger  of  an  improper 
complaisance  to  the  branch  which  possessed  it;  if  to  both, 
there  would  be  an  unwillingness  to  hazard  the  displeasure 
of  either;  if  to  the  people,  or  to  persons  chosen  by  them 
for  the  special  purpose,  there  would  be  too  great  a  dis- 
position to  consult  popularity,  to  justify  a  reliance  that 
nothing  would  be  consulted  but  the  Constitution  and  the 
laws. 


50.    THE    CHARACTER    OF    THE    GOOD    JUDGE. 

Rufus  Choate,  the  famous  orator  and  advocate,  was  a  firm  be- 
liever in  life  tenure  and  selection  by  appointment  as  the  best  methods 
by  which  to  secure  competent  and  efficient  judges.  In  supporting 
this  principle  before  the  Massachusetts  Constitutional  Convention  in 
1853,  he  thus  describes  the  qualities  which  the  ideal  judge  should 
possess : 

In  the  first  place,  he  should  be  profoundly  learned  in  all 
the  learning  of  the  law,  and  he  must  know  how  to  use  that 
learning.  Will  any  one  stand  up  here  to  deny  this?  In 
this  day,  boastful,  glorious  for  its  advancing  popular,  pro- 
fessional, scientific,  and  all  education,  will  any  one  disgrace 
himself  by  doubting  the  necessity  of  deep  and  continued 
studies,  and  various  and  thorough  attainments,  to  the  bench  ? 
He  is  to  know,  not  merely  the  law  which  you  make,  and 
the  legislature  makes,  not  constitutional  and  statute  law 
alone,  but  that  other  ampler,  that  boundless  jurisprudence, 


248  READINGS  IN  CIVIL  GOVERNMENT 

the  common  law,  which  the  successive  generations  of  the 
State  have  silently  built  up;  that  old  code  of  freedom 
which  we  brought  with  us  in  the  Mayflower  and  Arabella, 
but  which  in  the  progress  of  centuries  we  have  ameliorated 
and  enriched,  and  adapted  wisely  to  the  necessities  of  a 
busy,  prosperous,  and  wealthy  community — that  he  must 
know.  And  where  to  find  it?  In  volumes  which  you  must 
count  by  hundreds,  by  thousands;  filling  libraries;  exact- 
ing long  labors — the  labors  of  a  lifetime,  abstracted  from 
business,  from  politics;  but  assisted  by  taking  part  in  an 
active  judicial  administration;  such  labors  as  produced  the 
wisdom  and  won  the  fame  of  Parsons  and  Marshall,  and 
Kent  and  Story,  and  Holt  and  Mansfield.  If  your  system 
of  appointment  and  tenure  does  not  present  a  motive,  a  help 
for  such  labors  and  such  learning;  if  it  discourages,  if  it 
disparages  them,  in  so  far  it  is  a  failure. 

In  the  next  place,  he  must  be  a  man,  not  merely  upright, 
not  merely  honest  and  well-intentioned — this  of  course — 
but  a  man  who  will  not  respect  persons  in  judgment.  And 
does  not  every  one  here  agree  to  this  also?  Dismissing, 
for  a  moment,  all  theories  about  the  mode  of  appointing 
him,  or  the  time  for  which  he  shall  hold  office,  sure  I  am, 
we  all  demand,  that  as  far  as  human  virtue,  assisted  by  the 
best  contrivances  of  human  wisdom,  can  attain  to  it,  he 
shall  not  respect  persons  in  judgment.  He  shall  know 
nothing  about  the  parties,  everything  about  the  case.  He 
shall  do  everything  for  justice;  nothing  for  himself;  noth- 
ing for  his  friend;  nothing  for  his  patron;  nothing  for  his 
sovereign.  If  on  one  side  is  the  executive  power  and  the 
legislature  and  the  people — the  sources  of  his  honors,  the 
givers  of  his  daily  bread — and  on  the  other  an  individual 
nameless  and  odious,  his  eye  is  to  see  neither,  great  nor 
small;  attending  only  to  the  "trepidations  of  the  balance." 
If  a  law  is  passed  by  a  unanimous  legislature,  clamored  for 
by  the  general  voice  of  the  public,  and  a  cause  is  before 
him  on  it,  in  which  the  whole  community  is  on  one  side 
and  an  individual  nameless  or  odious  on  the  other,  and  he 


THE  FEDERAL  JUDICIARY         •  249 

believes  it  to  be  against  the  Constitution,  he  must  so  declare 
it — or  there  is  no  judge.  If  Athens  comes  there  to  demand 
that  the  cup  of  hemlock  be  put  to  the  lips  of  the  wisest  of 
men ;  and  he  believes  that  he  has  not  corrupted  the  youth,  nor 
omitted  to  worship  the  gods  of  the  city,  nor  introduced 
new  divinities  of  his  own,  he  must  deliver  him,  although  the 
thunder  light  on  the  unterrified  brow. 

This,  Sir,  expresses,  by  very  general  illustration,  what  I 
mean  when  I  say  I  would  have  him  no  respecter  of  persons 
in  judgment.  How  we  are  to  find,  and  to  keep  such  an 
one;  by  what  motives;  by  what  helps;  whether  by  popular 
and  frequent  election,  or  by  executive  designation,  and  per- 
manence dependent  on  good  conduct  in  office  alone — we  are 
hereafter  to  inquire;  but  that  we  must  have  him — that  his 
price  is  above  rubies — that  he  is  necessary,  if  justice,  if 
security,  if  right  are  necessary  for  man — all  of  you,  from 
the  East  or  "West,  are,  I  am  sure,  unanimous. 

And  finally,  he  must  possess  the  perfect  confidence  of  the 
community,  that  he  bear  not  the  sword  in  vain.  To  be 
honest,  to  be  no  respecter  of  persons,  is  not  yet  enough.  He 
must  be  believed  such.  I  should  be  glad  so  far  to  indulge 
an  old-fashioned  and  cherished  professional  sentiment  as 
to  say,  that  I  would  have  something  of  venerable  and  illus- 
trious attach  to  his  character  and  function,  in  the  judgment 
and  feelings  of  the  commonwealth.  But  if  this  should  be 
thought  a  little  above  or  behind  the  time,  I  do  not  fear  that  I 
subject  myself  to  the  ridicule  of  anyone,  when  I  claim  that 
he  be  a  man  towards  whom  the  love  and  trust  and  affec- 
tionate admiration  of  the  people  should  flow;  not  a  man 
perching  for  a  winter  and  summer  in  our  court-houses,  and 
then  gone  forever;  but  one  to  whose  benevolent  face,  and 
bland  and  dignified  manners,  and  firm  administration  of 
the  whole  learning  of  the  law,  we  become  accustomed; 
whom  our  eyes  anxiously,  not  in  vain,  explore  when  we 
enter  the  temple  of  justice;  towards  whom  our  attachment 
and  trust  grow  even  with  the  growth  of  his  own  eminent 
reputation.  .  .  . 


250  READINGS  IN  CIVIL  GOVERNMENT 

Give  to  the  community  such  a  judge,  and  I  care  little 
who  makes  the  rest  of  the  constitution,  or  what  party  ad- 
ministers it.  It  will  be  a  free  government,  I  know.  Let  us 
repose,  secure,  under  the  shade  of  a  learned,  impartial  and 
trusted  magistracy,  and  we  need  no  more. 

And  now,  what  system  of  promotion  to  office  and  what 
tenure  of  office  is  surest  to  produce  such  a  judge?  Is  it 
executive  appointment  during  good  behavior,  with  liability, 
however,  to  be  impeached  for  good  cause,  and  to  be  re- 
moved by  address  of  the  legislature?  or  is  it  election  by 
the  people,  or  appointment  by  the  executive  for  a  limited 
term  of  years? 

To  every  system  there  are  objections.  To  every  system 
there  are  sound,  or  there  are  specious  objections;  objections 
of  theory;  objections  of  fact.  Any  man's  ability  is  equal 
to  finding,  and  exaggerating  them.  What  is  demanded  of 
us  is  to  compare  the  good  and  evil  of  the  different  systems, 
and  select  the  best.  Compare  them  by  the  test  which  I  have 
proposed.  See  which  will  most  certainly  give  you  the  judge 
you  need,  and  adopt  that.  It  may  be  cavilled  at;  even  as 
freedom,  as  religion,  as  wholesome  restraint,  as  liberty  of 
speech,  as  the  institution  and  the  rights  of  property,  may 
be  cavilled  at;  but  in  its  fruits,  in  its  product,  judged  by  a 
long  succession  of  seasons,  is  its  justification  and  its  glory. 

51.   THE   POWER   OF   THE   COURTS   TO   DECLARE   LAWS   UNCONSTI- 
TUTIONAL. 

The  highest  power  exercised  by  the  courts  in  the  United  States  is 
that  of  declaring  legislative  acts  unconstitutional  and  therefore  in- 
valid. The  first  instance  of  the  exercise  of  this  power  by  the  Fed- 
eral Courts  was  in  the  famous  case  of  Marbury  vs.  Madison  de- 
cided in  1803.  Chief  Justice  John  Marshall  delivered  the  opinion  in 
this  case  and  in  doing  so  asserted  the  right  of  the  court  to  pass  on 
the  validity  of  a  law  of  Congress  so  positively  and  logically  that  his 
dictum  has  become  firmly  imbedded  in  our  judicial  practice. 

The  question  whether  an  act  repugnant  to  the  constitution 
can  become  the  law  of  the  land,  is  a  question  deeply  inter- 


THE  FEDERAL  JUDICIARY  251 

esting  to  the  United  States ;  but,  happily,  not  of  an  intricacy 
proportioned  to  its  interest.  It  seems  only  necessary  to 
recognize  certain  principles,  supposed  to  have  been  long  and 
well  established,  to  decide  it. 

That  the  people  have  an  original  right  to  establish,  for 
their  future  government,  such  principles  as,  in  their 
opinion,  shall  most  conduce  to  their  own  happiness,  is  the 
basis  on  which  the  whole  American  fabric  has  been  erected. 
The  exercise  of  this  original  right  is  a  very  great  exertion; 
nor  can  it  nor  ought  it  to  be  frequently  repeated.  The 
principles,  therefore,  so  established,  are  deemed  fundamen- 
tal. And  as  the  authority  from  which  they  proceed  is 
supreme,  and  can  seldom  act,  they  are  designed  to  be  per- 
manent. 

This  original  and  supreme  will  organizes  the  government, 
and  assigns  to  different  departments  their  respective  powers. 
It  may  either-  stop  here,  or  establish  certain  limits  not  to 
be  transcended  by  those  departments. 

The  government  of  the  United  States  is  of  the  latter 
description.  The  powers  of  the  legislature  are  defined  and 
limited;  and  that  those  limits  may  not  be  mistaken,  or  for- 
gotten, the  constitution  is  written.  To  what  purpose  are 
powers  limited,  and  to  what  purpose  is  that  limitation  com- 
mitted to  writing,  if  these  limits  may,  at  any  time,  be  passed 
by  those  intended  to  be  restrained?  The  distinction  between 
a  government  with  limited  and  unlimited  powers  is  abolished, 
if  those  limits  do  not  confine  the  persons  on  whom  they  are 
imposed,  and  if  acts  prohibited  and  acts  allowed  are  of 
equal  obligation.  It  is  a  proposition  too  plain  to  be  con- 
tested, that  the  constitution  controls  any  legislative  act 
repugnant  to  it;  or,  that  the  legislature  may  alter  the  con- 
stitution by  an  ordinary  act. 

Between  these  alternatives  there  is  no  middle  ground. 
The  constitution  is  either  a  superior  paramount  law,  un- 
changeable by  ordinary  means,  or  it  is  on  a  level  with 
ordinary  legislative  acts,  and,  like  other  acts,  is  alterable 
when  the  legislature  shall  please  to  alter  it. 


252  READINGS  IN  CIVIL  GOVERNMENT 

If  the  former  part  of  the  alternative  be  true,  then  a  legis- 
lative act  contrary  to  the  constitution  is  not  law;  if  the 
latter  part  be  true,  then  written  constitutions  are  absurd 
attempts,  on  the  part  of  the  people,  to  limit  a  power  in  its 
own  nature  illimitable. 

Certainly  all  those  who  have  framed  written  constitu- 
tions contemplate  them  as  forming  the  fundamental  and 
paramount  law  of  the  nation,  and,  consequently,  the  theory 
of  every  such  government  must  be,  that  an  act  of  the 
legislature,  repugnant  to  the  constitution,  is  void. 

This  theory  is  essentially  attached  to  a  written  constitu- 
tion, and  is  consequently  to  be  considered,  by  this  court,  as 
one  of  the  fundamental  principles  of  our  society.  It  is  not, 
therefore,  to  be  lost  sight  of  in  the  further  consideration 
of  this  subject. 

If  an  act  of  the  legislature,  repugnant  to  the  constitution, 
is  void,  does  it,  notwithstanding  its  invalidity,  bind  the 
courts,  and  oblige  them  to  give  it  effect?  Of,  in  other 
words,  though  it  be  not  law,  does  it  constitute  a  rule  as 
operative  as  if  it  was  a  law?  This  would  be  to  overthrow 
in  fact  what  was  established  in  theory;  and  would  seem,  at 
first  view,  an  absurdity  too  gross  to  be  insisted  on.  It  shall, 
however,  receive  a  more  attentive  consideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial 
department  to  say  what  the  law  is.  Those  who  apply  the 
rule  to  particular  cases,  must  of  necessity  expound  and 
interpret  that  rule.  If  two  laws  conflict  with  each  other, 
the  courts  must  decide  on  the  operation  of  each. 

So  if  a  law  be  in  opposition  to  the  constitution;  if  both 
the  law  and  the  constitution  apply  to  a  particular  case,  so 
that  the  court  must  either  decide  that  case  conformably  to 
the  law,  disregarding  the  constitution,  or  conformably  to 
the  constitution,  disregarding  the  law,  the  court  must  deter- 
mine which  of  these  conflicting  rules  governs  the  case.  This 
is  of  the  very  essence  of  judicial  duty. 

If,  then,  the  courts  are  to  regard  the  constitution,  and 


THE  FEDERAL  JUDICIARY  253 

the  constitution  is  superior  to  any  ordinary  act  of  the  legisla- 
ture, the  constitution,  and  not  such  ordinary  act,  must  govern 
the  case  to  which  they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  con- 
stitution is  to  be  considered,  in  court,  as  a  paramount  law, 
are  reduced  to  the  necessity  of  maintaining  that  courts  must 
close  their  eyes  on  the  constitution,  and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all 
written  constitutions.  It  would  declare  that  an  act  which, 
according  to  the  principles  and  theory  of  our  government,  is 
entirely  void,  is  yet,  in  practice,  completely  obligatory.  It 
would  declare  that  if  the  legislature  shall  do  what  is  ex- 
pressly forbidden,  such  act,  notwithstanding  the  express  pro- 
hibition, is  in  reality  effectual.  It  would  be  giving  to  the 
legislature  a  practical  and  real  omnipotence,  with  the  same 
breath  which  professes  to  restrict  their  powers  within  nar- 
row limits.  It  is  prescribing  limits,  and  declaring  that  those 
limits  may  be  passed  at  pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the 
greatest  improvement  on  political  institutions,  a  written  con- 
stitution, would  of  itself  be  sufficient,  in  America,  where 
written  constitutions  have  been  viewed  with  so  much 
reverence,  for  rejecting  the  construction.  But  the  peculiar 
expressions  of  the  constitution  of  the  United  States  furnish 
additional  arguments  in  favor  of  its  rejection. 

The  judicial  power  of  the  United  States  is  extended  to 
all  cases  arising  under  the  constitution. 

Could  it  be  the  intention  of  those  who  gave  this  power, 
to  say  that  in  using  it  the  constitution  should  not  be  looked 
into?  That  a  case  arising  under  the  constitution  should  be 
decided  without  examining  the  instrument  under  which  it 
arises  ? 

This  is  too  extravagant  to  be  maintained. 

In  some  cases,  then,  the  constitution  must  be  looked  into  by 
the  judges.  And  if  they  can  open  it  at  all,  what  part  of 
it  are  they  forbidden  to  read  or  to  obey? 


254  READINGS  IN  CIVIL  GOVERNMENT 

There  are  many  other  parts  of  the  constitution  which 
serve  to  illustrate  this  subject. 

It  is  declared  that  "no  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State."  Suppose  a  duty  on  the  export 
of  cotton,  of  tobacco,  or  of  flour;  and  a  suit  instituted  to 
recover  it.  Ought  judgment  to  be  rendered  in  such  a  case? 
ought  the  judges  to  close  their  eyes  on  the  constitution, 
and  only  see  the  law? 

The  constitution  declares  "that  no  bill  of  attainder  or  ex 
post  facto  law  shall  be  passed." 

If,  however,  such  a  bill  should  be  passed,  and  a  person 
should  be  prosecuted  under  it,  must  the  court  condemn  to 
death  those  victims  whom  the  constitution  endeavors  to  pre- 
serve? 

"No  person,"  says  the  constitution,  "shall  be  convicted 
of  treason  unless  on  the  testimony  of  two  witnesses  to  the 
same  overt  act,  or  on  confession  in  open  court." 

Here  the  language  of  the  constitution  is  addressed  espe- 
cially to  the  courts.  It  prescribes,  directly  for  them,  a  rule 
of  evidence  not  to  be  departed  from.  If  the  legislature 
should  change  that  rule,  and  declare  one  witness,  or  a  con- 
fession out  of  court,  sufficient  for  conviction,  must  the  con- 
stitutional principle  yield  to  the  legislative  act? 

From  these,  and  many  other  selections  which  might  be 
made,  it  is  apparent  that  the  framers  of  the  constitution 
contemplated  that  instrument  as  a  rule  for  the  government 
of  courts,  as  well  as  of  the  legislature. 

Why  otherwise  does  it  direct  the  judges  to  take  an  oath 
to  support  it?  This  oath  certainly  applies  in  an  especial 
manner  to  their  conduct  in  their  official  character.  How 
immoral  to  impose  it  on  them,  if  they  were  to  be  used  as  the 
instruments,  and  the  knowing  instruments,  for  violating 
what  they  swear  to  support.  .  .  . 

Thus,  the  particular  phraseology  of  the  constitution  of  the 
United  States  confirms  and  strengthens  the  principle,  sup- 
posed to  be  essential  to  all  written  constitutions,  that  a  law 


THE  FEDERAL  JUDICIARY  255 

repugnant  to  the  constitution  is  void;  and  that  courts,  as 
well  as  other  departments,  are  bound  by  that  instrument. 


52.    THE  PROCESS   AND   EFFECT   OF   DECLARING  LEGISLATIVE  ACTS 
UNCONSTITUTIONAL. 

The  power  of  the  courts  to  decide  as  to  the  validity  of  legislative 
acts  is  one  of  the  distinctive  features  of  American  constitutional  law. 
The  principles  which  guide  the  courts  in  exercising  this  power  and 
the  effect  of  a  decision  adverse  to  the  validity  of  a  particular  law  are 
clearly  stated  by  Judge  Emlin  MeClain  in  the  following  selection: 

It  is  to  be  observed  that  this  function  of  the  courts  is  not 
the  primary  or  the  principal  purpose  of  their  creation  and 
recognition  as  a  department  of  government.  Courts  are 
created  primarily  to  decide  legal  controversies;  but  in  decid- 
ing such  controversies  it  is  necessary  for  them  to  determine 
what  is  the  law  as  applicable  to  the  particular  case,  and 
as  incidental  to  the  exercise  of  this  function  they  may  have 
to  decide  whether  a  statute  or  an  executive  act  relied  upon 
by  one  party  or  the  other  is  valid,  or  whether,  on  the  other 
hand,  it  is  invalid  because  in  excess  of  the  power  conferred 
upon  the  department  which  has  attempted  to  act,  or  is  in 
violation  of  some  constitutional  provision  or  limitation. 
It  is  a  function  of  the  law-making  power  to  determine 
prospectively  what  shall  be  the  law,  and  to  express  that  deter- 
mination by  adding  to  or  modifying  or  repealing  the  exist- 
ing law  by  statutes  taking  effect  from  the  time  of  their 
enactment.  .  .  .  The  courts,  on  the  other  hand,  decide 
cases  submitted  to  them  with  reference  to  what  the  law  was 
at  the  time  the  controversies  to  be  determined  arose,  by  which 
the  rights  of  parties  to  such  controversies  are  to  be  adjudged. 
Their  principal  concern  is  as  to  what  is,  or  rather  what  has 
been,  the  law  to  the  time  of  the  decision,  not  what  shall  be 
the  law  for  future  cases. 

It  is  true  that,  having  decided  what  the  law  is,  the  court 
will  be  likely  in  future  cases  to  adhere  to  the  views  expressed 


256  READINGS  IN  CIVIL  GOVERNMENT 

in  previous  decisions,  and  the  desirability  of  having  the 
rules  of  law  on  which  persons  may  act  and  rely  stable  and 
settled  will  incline  the  courts  to  adhere  to  their  former 
decisions,  which  will  be  regarded  as  precedents  in  subsequent 
cases.  But  the  act  of  the  court  in  determining  what  the 
law  is  in  a  given  case  is  not  primarily  for  the  purpose  of 
ascertaining  it  for  future  cases,  but  in  order  that  the  case 
before  it  may  be  rightly  decided.  It  is  erroneous,  there- 
fore, to  speak  generally  of  the  judicial  department  as  hav- 
ing power  to  interpret  or  declare  the  law  as  though  it  were 
especially  created  for  the  purpose  of  interpreting  the  con- 
stitution and  the  acts  of  the  other  departments  of  the  govern- 
ment in  order  that  the  people  shall  be  advised  as  to  what  they 
mean.  It  is  assumed  rather  that  the  constitution  and  the 
law,  both  written  and  unwritten,  are  known,  and  that  persons 
whose  controversies  come  before  the  courts  have  acted  with 
reference  to  the  law  as  it  existed  and  are  bound  to  knowledge 
thereof;  and  the  courts,  therefore,  on  that  basis  determine 
only  retrospectively  what  law  applies  in  the  settlement  of 
controversies  which  have  already  arisen.  Nevertheless,  as  a 
result  of  such  determination,  persons  may  in  the  future  be 
guided  and  greatly  assisted  in  following  the  law,  by  having 
reference  to  what  has  already  been  decided  in  previous 
cases. 

The  preceding  considerations  lead  to  some  other  important 
conclusions  as  to  the  proper  province  of  the  courts,  in  pass- 
ing upon  the  constitutionality  of  statutes.  First,  it  will 
always  be  borne  in  mind  by  a  court  that  the  legislative 
department,  on  whose  authority  the  statute  rests,  is  a  co- 
drdinate  branch  with  the  judicial ;  that  there  is  no  superiority 
as  between  them;  that  each  is  vested  with  power  and  dis- 
cretion within  the  scope  prescribed  for  it  by  the  constitution ; 
and  therefore  that  an  act  of  the  legislative  department  is 
entitled  to  every  presumption  of  correctness,  and  that  to 
question  its  validity  is  the  exercise  of  a  very  delicate  and 
extraordinary  power,  to  be  resorted  to  only  in  the  last  ex- 
tremity and  when  the  rights  of  the  parties  to  the  litigation 


THE  FEDERAL  JUDICIARY  257 

are  found  necessarily  to  depend  upon  its  construction.  The 
courts  then,  instead  of  being  zealous  to  interpret  and  deter- 
mine the  validity  of  statutes  with  respect  to  their  constitu- 
tionality, in  order  that  the  people  may  know  and  act 
accordingly,  will  discharge  such  duty  with  great  reluctance 
and  reserve,  the  importance  of  making  the  law  clear  for 
future  cases  being  subordinate  to  that  of  leaving  the  legisla- 
tive department  free  in  the  exercise  of  its  constitutional 
prerogative  of  law  making.  Moreover,  the  courts  will  enter- 
tain every  presumption  in  favor  of  the  validity  of  a  statute 
called  in  question,  and  declare  it  to  be  invalid  on  constitu- 
tional grounds  only  where  it  is  plainly  and  clearly  in  con- 
flict with  the  constitution.  They  will  not  pass  upon  such  a 
question  save  in  a  case  in  which  it  is  necessary  to  do  so  in 
order  to  adjudicate  the  real  and  substantial  rights  of  the 
parties  in  that  case;  and  they  will  avoid,  if  practicable, 
considering  such  a  question  except  after  full  argument  and 
a  consultation  in  which  all  the  judges  of  the  court  are 
present. 

Second,  a  court  will  avoid,  if  possible,  setting  up  its  own 
judgment  as  against  the  judgment  of  a  co-ordinate  branch 
of  the  government  as  to  matters  which  are  by  the  constitu- 
tion entrusted  to  the  discretion  of  such  co-ordinate  branch. 
The  diplomatic  relations  between  this  and  foreign  countries 
being  exclusively  within  the  control  of  the  executive  depart- 
ment, the  determination  by  that  department  as  to  whether 
territory  has  been  acquired  from  a  foreign  state  so  as 
to  become  a  part  of  the  United  States  will  be  conclusive 
on  the  courts,  and  they  will  not  undertake  to  review 
the  correctness  or  propriety  of  the  determination.  The 
legislative  department  having  been  vested  with  authority 
to  levy  taxes,  the  propriety  of  any  particular  tax  as  to  its 
subject,  amount,  or  the  method  of  its  collection;  will  not 
be  questioned  by  the  judiciary;  but  on  the  other  hand,  as 
private  property  rights  are  involved  in  the  exaction  of  a 
tax,  the  courts  will  determine  whether  such  exaction  is  within 
the  scope  of  the  taxing  power,  and  whether  the  property  is 


258  READINGS  IN  CIVIL  GOVERNMENT 

properly  subject  to  taxation;  and  if  a  particular  method  of 
apportionment  is  directed  by  the  constitution,  the  courts  will 
say  whether  that  method  has  been  followed.  Furthermore, 
as  the  two  houses  of  Congress  are  made  judges  of  the  election 
and  qualification  of  their  respective  members,  and  are  author- 
ized to  prescribe  their  rules  and  procedure,  and  punish  their 
members  for  disorderly  behavior  by  expulsion,  no  court  will 
attempt  to  review  or  revise  the  action  of  either  house  in  this 
respect,  even  though  the  question  to  be  determined  may  in  its 
nature  be  judicial.  For  instance,  if  a  member  should  be 
expelled,  no  court  could  pass  on  the  question  whether  the 
expelled  member  was  guilty  of  the  acts  charged  as  a  ground 
of  expulsion. 

In  other  words,  while  the  constitution  is  binding  upon  all 
branches  of  the  government,  the  question  whether  it  has  been 
violated  by  the  executive  or  legislative  branch  cannot  be 
inquired  into  by  the  courts,  except  in  a  case  of  judicial 
cognizance,  that  is,  a  case  coming  within  the  jurisdiction 
which  has  been  given  to  the  courts  by  the  constitution  and 
the  laws.  It  is  to  be  assumed  that  the  executive  and 
legislative  departments  are  as  zealous  in  abiding  by  the  con- 
stitution as  are  the  courts,  and  that  the  requirements  and 
limitations  of  the  constitution  will  be  carefully  observed; 
and  only  when  in  the  exercise  of  judicial  power  it  becomes 
necessary  to  determine  whether  an  executive  or  legislative 
act  is  valid  will  the  courts  enter  into  a  consideration  of  the 
question  whether  the  power  granted  in  the  constitution  or 
the  limitations  imposed  by  it  have  been  exceeded  or  infringed. 
Many  questions  of  constitutional  law,  in  the  broad  and  proper 
sense  of  the  term,  can  never  come  before  the  courts  for  final 
determination,  because  the  action  of  the  executive  and  legis- 
lative departments  with  reference  thereto  must,  so  far  as 
any  legal  remedy  is  concerned,  be  conclusively  presumed  to 
be  in  accordance  with  the  constitution.  It  is  true  that  in  Mas- 
sachusetts and  a  few  other  states  the  constitution  authorizes 
the  judicial  department  to  give  advisory  opinions  to  the  legis- 
lative and  executive  departments  on  application,  but  advisory 


THE  FEDERAL  JUDICIARY  259 

opinions  thus  given  have  not  the  force  of  decisions  and  are 
not  regarded  as  within  the  scope  of  judicial  power.  .  .  . 
The  fact  that  the  judicial  department  is  limited  to  the 
determination  of  controversies  properly  arising  in  cases 
brought  into  the  courts  for  adjudication,  is  to  be  carefully 
borne  in  mind  in  correctly  understanding  the  result  of  a 
decision  rendered  by  a  court.  Such  a  decision  is  conclusive 
as  to  the  rights  of  the  parties  before  the  court,  and  also 
serves  as  a  precedent  which  will  have  more  or  less  weight  in 
the  determination  of  subsequent  cases  involving  the  same 
question.  But  the  courts  cannot  repeal  or  annul  a  statute, 
nor  dictate  to  the  executive  in  any  compulsory  way  what 
his  action  shall  be.  The  effect  of  declaring,  in  a  particular 
case,  that  a  statute  is  unconstitutional  is  not  to  repeal  the 
statute,  but  to  determine  in  the  case  before  the  court  that  it 
will  not  be  recognized  as  valid,  and  to  furnish  a  precedent 
or  authority  for  contending  in  similar  cases  where  such  a 
statute  is  brought  in  question,  that  it  should  not  be  recog- 
nized. The  statute  remains,  nevertheless,  on  the  statute 
books  as  an  act  of  the  legislative  department,  even  though 
for  the  purpose  for  which  it  has  been  relied  upon  the  court 
may  have  decided  that  it  is  not  a  part  of  the  law  of  the 
land.  The  decision  of  the  court  is  not  that  the  statute  shall 
thereafter  be  of  no  force  and  effect,  but  that  it  has  never  been 
a  valid  statute.  While  it  may  be  proper  that  other  depart- 
ments of  the  government  shall  yield  great  deference  to  the 
conclusions  of  the  court  on  such  a  question,  there  is  no 
method  of  compelling  them  to  do  so,  and  they  must  still  be 
allowed  to  exercise  their  own  discretion  in  such  matter,  sub- 
ject only  to  the  presumption  that  if  another  case  is  presented 
to  the  judiciary  department,  involving  the  same  question,  the 
courts  will  adhere  to  the  former  decision. 

ADDITIONAL  READINGS 

1 — The   Organization   of  the    Courts  of  the   United   States, 
Baldwin,  S.  E.,  The  American  Judiciary,  137-51. 


260  READINGS  IN  CIVIL  GOVERNMENT 

2 — The  Working  of  the  Courts,  Bryce,  J.,  American  Common- 
wealth, I,  261-76. 

3 — Relation  of  the  Judiciary  to  the  Political  Departments  of 
the  Government,  Baldwin,  S.  E.,  The  American  Judi- 
ciary, 27-53. 

4 — The  United  States  Supreme  Court  the  Absolute  Power, 
Pierce,  P.,  Federal  Usurpation,  197-237. 

5 — The  Power  to  Declare  Statutes  Unconstitutional,  Elliot, 
C.  B.,  Political  Science  Quarterly,  V,  22^58. 

6 — The  Great  Usurpation,  Trickett,  Wm.,  American  Law  Re- 
view, XL,  356-76. 


CHAPTER  XII 
STATE  ADMINISTRATION 

53.   THE   DEVELOPMENT  OF    STATE    CONSTITUTIONS. 

During  the  century  and  a  quarter  since  the  States  declared  their 
independence  and  formed  governments  of  their  own  choice  these 
governments  have  been  subject  to  constant  change  until  to-day  they 
present  a  form  quite  different  from  that  in  which  they  were  orig- 
inally cast.  This  development  has  been  almost  uniformly  in  the  di- 
rection of  enlarging  the  scope  of  the  governor's  authority  and  of 
limiting  and  checking  that  of  the  legislature.  In  the  following  se- 
lection Mr.  James  Bryce  sketches  the  history  of  State  Constitutions 
down  to  1890 :  * 

Three  periods  may  be  distinguished  in  the  development 
of  State  Governments  as  set  forth  in  the  Constitutions, 
each  period  marked  by  an  increase  in  the  length  and  minute- 
ness of  those  instruments. 

The  first  period  covers  about  thirty  years  from  1776  down- 
wards, and  includes  the  earlier  Constitutions  of  the  original 
thirteen  States,  as  well  as  of  Kentucky,  Vermont,  Tennessee, 
and  Ohio. 

Most  of  these  Constitutions  were  framed  under  the  impres- 
sions of  the  Revolutionary  War.  They  manifest  a  dread  of 
executive  power  and  of  military  power,  together  with  a  dis- 
position to  leave  everything  to  the  legislature,  as  being  the 
authority  directly  springing  from  the  people.  The  election 
of  a  State  governor  is  in  most  States  vested  in  the  legislature. 
He  is  nominally  assisted,  but  in  reality  checked,  by  a  council 
not  of  his  own  choosing.  He  has  not  (except  in  Massa- 

i  Selections  53,  55,  72  and  82  are  reprinted  from  Bryce's  American 
Commonwealth,  by  special  permission  of  MacMillan  and  Company. 

261 


262  READINGS  IN  CIVIL  GOVERNMENT 

chusetts)  a  veto  on  the  acts  of  the  legislature.  He  has  not, 
like  the  royal  governors  of  colonial  days,  the  right  of 
adjourning  or  dissolving  it.  The  idea  of  giving  power  to 
the  people  directly  has  scarcely  appeared,  because  the  legis- 
lature is  conceived  as  the  natural  and  necessary  organ  of 
popular  government,  much  as  the  House  of  Commons  is  in 
England.  And  hence  many  of  these  early  Constitutions 
consist  of  little  beyond  an  elaborate  Bill  of  Rights  and  a 
comparatively  simple  outline  of  a  frame  of  government, 
establishing  a  representative  legislature,  with  a  few  executive 
officers  and  courts  of  justice  carefully  separated  therefrom. 

The  second  period  covers  the  first  half  of  the  present  cen- 
tury down  to  the  time  when  the  intensity  of  the  party 
struggles  over  slavery  (1850-60)  interrupted  to  some  extent 
the  natural  processes  of  State  development.  It  is  a  period 
of  the  democratization  of  all  institutions,  a  democratization 
due  not  only  to  causes  native  to  American  soil,  such  as  the 
supremacy  in  politics  of  the  generation  who  had  been  boys 
during  the  Revolutionary  War,  but  to  the  influence  upon 
the  generation  which  had  then  come  to  manhood  of  French 
republican  ideas,  an  influence  which  declined  after  1805 
and  ended  with  1851,  since  which  time  French  examples  and 
ideas  have  counted  for  very  little.  Such  provisions  for  the 
maintenance  of  religious  institutions  by  the  State  as  had 
continued  to  exist  are  now  swept  away.  The  principle 
becomes  established  (in  the  North  and  West)  that  constitu- 
tions must  be  directly  enacted  by  popular  vote.  The  choice 
of  a  governor  is  taken  from  the  legislature  to  be  given  to 
the  people.  Property  qualifications  are  abolished,  and  a  suf- 
frage practically  universal,  except  that  it  often  excludes  free 
persons  of  colour,  is  introduced.  Even  the  judges  are  not 
spared.  Many  Constitutions  shorten  their  term,  and  direct 
them  to  be  chosen  by  popular  vote.  The  State  has  emerged 
from  the  English  conception  of  a  community  acting  through 
a  ruling  legislature,  for  the  legislature  begins  to  be  regarded 
as  being  only  a  body  of  agents  exercising  delegated  and  re- 
stricted powers,  and  obliged  to  recur  to  the  sovereign  people 


STATE  ADMINISTRATION  263 

(by  asking  for  a- constitutional  amendment)  when  it  seeks  to 
extend  these  powers  in  any  particular  direction.  The  increas- 
ing length  of  the  constitutions  during  this  half  century  shows 
how  the  range  of  the  popular  vote  has  extended,  for  these 
documents  now  contain  a  mass  of  ordinary  law  on  matters 
which  in  the  early  days  would  have  been  left  to  the  legisla- 
tures. 

In  the  third  period,  which  begins  from  about  the  time  of  the 
Civil  War,  a  slight  reaction  may  be  discerned,  not  against 
popular  sovereignty,  which  is  stronger  than  ever,  but  in  the 
tendency  to  strengthen  the  executive  and  judicial  depart- 
ments. The  governor  had  begun  to  receive  in  the  second  pe- 
riod, and  has  now  in  every  State  but  four,  a  veto  on  the  acts 
of  the  legislature.  His  tenure  of  office  has  been  generally 
lengthened;  the  restrictions  on  his  re-eligibility  generally  re- 
moved. In  many  States  the  judges  have  been  granted  larger 
salaries,  and  their  terms  of  office  lengthened.  Some  constitu- 
tions have  even  transferred  judicial  appointments  from  the 
vote  of  the  people  to  the  executive.  But  the  most  notable 
change  of  all  has  been  the  narrowing  of  the  competence  of  the 
legislature,  and  the  fettering  its  action  by  complicated  restric- 
tions. It  may  seem  that  to  take  powers  away  from  the  legisla- 
ture is  to  give  them  to  the  people,  and  therefore  another  step 
towards  pure  democracy.  But  in  America  this  is  not  so,  be- 
cause a  legislature  always  yields  to  any  popular  clamour,  how- 
ever transient,  while  direct  legislation  by  the  people  involves 
delay.  Such  provisions  are  therefore  conservative  in  their 
results,  and  are  really  checks  imposed  by  the  citizens  upon 
themselves.  .  .  . 

A  few  more  observations  on  what  the  Constitutions  disclose 
are  needed  to  complete  this  brief  sketch  of  the  most  instructive 
sources  for  the  history  of  popular  government  which  our  cen- 
tury has  produced — documents  whose  clauses,  while  they  at- 
tempt to  solve  the  latest  problems  of  democratic  common- 
wealths, often  recall  the  earliest  efforts  of  our  English  fore- 
fathers to  restrain  the  excesses  of  mediaeval  tyranny. 

The  Constitutions  witness  to  a  singular  distrust  by  the  peo- 


264  READINGS  IN  CIVIL  GOVERNMENT 

pie  of  its  own  agents  and  officers,  not  only  of  the  legislatures 
but  also  of  local  authorities,  as  well  rural  as  urban,  whose 
powers  of  borrowing  or  undertaking  public  works  are  strictly 
limited.  Even  the  judges  are  in  some  States  restrained  in 
their  authority  to  commit  for  contempt  of  court,  and  three 
very  recent  constitutions  contain  severe  provisions  against 
abuse  of  his  veto  and  appointing  power  by  the  governor,  and 
against  bribery  offered  to  or  by  him. 

They  witness  also  to  a  jealousy  of  the  Federal  government. 
By  most  constitutions  a  Federal  official  is  made  incapable,  not 
only  of  State  office,  but  of  being  a  member  of  a  State  legisla- 
ture. These  prohibitions  are  almost  the  only  references  to 
the  National  government  to  be  found  in  the  State  constitu- 
tions, which  so  far  as  their  terms  go  might  belong  to  inde- 
pendent communities.  They  usually  talk  of  corporations  be- 
longing to  other  States  as  "  foreign, "  and  sometimes  try  to 
impose  special  burdens  on  them. 

They  show  a  wholesome  anxiety  to  protect  and  safeguard 
private  property  in  every  way.  The  people's  consciousness 
of  sovereignty  has  not  used  the  opportunity  which  the  en- 
actment of  a  constitution  gives  to  override  private  rights; 
there  is  rather  a  desire  to  secure  such  rights  from  any  en- 
croachment by  the  legislature ;  witness  the  frequent  provisions 
against  the  taking  of  property  without  due  compensation,  and 
against  the  passing  of  private  or  personal  statutes  which  could 
unfairly  affect  individuals.  The  only  exceptions  to  this  rule 
are  to  be  found  in  the  case  of  anything  approaching  a  monop- 
oly, and  in  the  case  of  wealthy  corporations.  But  the  "mo- 
nopolist" is  regarded  as  the  enemy  of  the  ordinary  citizen, 
whom  he  oppresses;  and  the  corporation — it  is  usually  corpo- 
rations that  are  monopolists — is  deemed  not -a  private  person 
at  all,  but  a  sort  of  irresponsible  tyrant  whose  resources  en- 
able him  to  overreach  the  law.  Corporations  are  singled  out 
for  special  taxation.  Labour  laws  are  enacted  to  apply  to 
them  only.  A  remarkable  instance  of  this  hostility  to  monopo- 
lies is  to  be  found  in  the  Constitution  of  Illinois  of  1870,  with 
its  provisions  anent  grain  elevators,  warehouses,  and  railroads. 


STATE  ADMINISTRATION  265 

The  newer  constitutions  of  other  Western  States,  such  as 
Wisconsin  and  Texas,  are  not  less  instructive  in  this  respect. 
Nor  is  it  surprising  that  efforts  should  be  made  in  some  of 
the  more  recent  instruments  to  strike  at  the  combinations 
called  " trusts." 


54.   RECENT  TENDENCIES  IN  STATE  GOVERNMENT. 

The  last  twenty  years  have  witnessed  a  continuation  of  the 
changes  in  the  relative  powers  of  State  governors  and  legislatures 
referred  to  in  the  preceding  number.  In  addition  other  tendencies 
have  appeared,  such  for  instance  as  the  provision  for  a  larger  par- 
ticipation in  government  by  the  people  through  the  process  of  di- 
rect legislation.  These  recent  tendencies  are  the  subject  of  the  fol- 
lowing article  by  Dr.  W.  F.  Dodd,  written  in  1908: 

Because  of  the  great  mass  of  detail  now  introduced  into  most 
of  our  state  constitutions  and  of  the  fact  that  they  contain 
much  matter  of  private  law,  frequent  amendments  have  become 
necessary  in  order  to  adjust  constitutional  provisions  to  chang- 
ing conditions.  The  tendency  to  embody  statutory  matter  in 
state  constitutions  continues,  and  the  furthest  point  yet 
reached  in  this  development  is  represented  by  the  new  consti- 
tution of  Oklahoma.  The  adoption  of  new  constitutions  and 
the  process  of  constitutional  amendment  have  become  active 
organs  of  legislation  superior  to  the  ordinary  state  legislatures. 
Extreme  cases  may  easily  be  cited  of  provisions  being  in- 
serted in  constitutions  which  might  much  better  have  been  left 
to  state  legislation ;  such,  for  example,  as  the  provision  of  the 
Oklahoma  constitution  which  prescribes  the  tests  to  be  applied 
to  determine  the  purity  of  kerosene  oil,  and  a  North  Dakota 
amendment  of  1904  changing  the  name  of  the  state  school  for 
the  deaf  and  dumb.  It  should  be  said,  however,  that  the  con- 
stitution recently  adopted  by  the  state  of  Michigan  is  an  excep- 
tion to  the  general  tendency  in  that  it  confines  itself  rather 
closely  to  matters  which  may  properly  be  termed  constitu- 
tional. 

For  many  years  the  processes  of  constitutional  amendment 


266  READINGS  IN  CIVIL  GOVERNMENT 

have  been  growing  simpler  and  easier.  The  increased  com- 
plexity of  constitutions  makes  frequent  amendment  necessary, 
and  is  forcing  the  simplification  of  the  amending  procedure. 
The  amendment  of  state  constitutions  may  now  be  accom- 
plished with  little  difficulty  in  most  of  the  states,  although  the 
amending  procedure  is  still  extremely  cumbersome  in  some 
states,  as,  for  example,  in  New  Hampshire  and  Illinois.  .  .  . 

In  the  state  governments  there  has  been  a  continued  devel- 
opment toward  the  increase  of  the  governor's  power  and  the 
diminution  of  the  power  of  the  state  legislature.  Although 
the  state  executive  power  is  badly  disintegrated  there  would 
seem  to  be  a  slight  tendency  to  increase  the  governor's  admin- 
istrative authority,  both  by  statute  and  by  constitutional  pro- 
visions. The  Virginia  constitution  of  1902  authorizes  the  gov- 
ernor to  suspend  executive  officers  of  the  state  during  the  re- 
cess of  the  general  assembly,  the  general  assembly  itself  to  de- 
cide at  its  next  meeting  whether  the  suspended  officer  shall  be 
restored  or  removed.  The  governor  of  Oklahoma  is  given 
power  to  require  information  in  writing  under  oath  from  all 
officers  and  commissioners  of  the  state  and  from  all  officers 
of  state  institutions.  By  the  Alabama  constitution  of  1901 
and  by  the  Michigan  constitution  of  1908  the  governors  are 
given  increased  power  to  require  information  in  writing  from 
the  executive  and  administrative  officers  of  these  states. 

But  it  is  with  reference  to  legislation  that  the  increase  of  the 
governor's  power  is  most  apparent.  Ohio  by  an  amendment 
of  1903  conferred  the  veto  power  upon  her  governor,  leaving 
only  two  states — Rhode  Island  and  North  Carolina — which 
have  no  form  of  executive  veto  upon  state  legislation.  Vir- 
ginia in  1902,  Ohio  in  1903,  Kansas  in  1904,  Oklahoma  in  1907, 
and  Michigan  in  1908,  have  conferred  upon  their  governors 
the  additional  power  to  veto  separate  items  in  appropriation 
bills;  there  are  now  thirty-three  states  which  confer  this  power 
upon  their  governors.  With  reference  to  the  making  of  appro- 
priations Alabama  also  increases  still  further  the  executive 
power  by  authorizing  the  governor,  auditor,  and  attorney-gen- 
eral of  that  state  to  prepare  a  general  revenue  bill,  before  each 


STATE  ADMINISTRATION  267 

regular  session  of  the  legislature,  to  be  submitted  to  the  legisla^ 
ture  for  its  information. 

Ohio  by  amendment  of  1903  confers  upon  its  governor  power 
to  veto  any  section  or  sections  of  a  bill  presented  to  him  and 
to  approve  other  portions  of  the  bill  so  presented,  following  in 
this  respect  the  Washington  constitution  of  1889.  The  Ala- 
bama constitution  of  1901  permits  the  governor  to  propose  an 
amendment  to  remedy  any  feature  of  a  bill  which  he  does  not 
approve,  and  if  his  proposed  amendment  is  not  adopted  by  the 
two  houses,  the  bill  to  become  law  must  be  passed  over  the 
executive  veto.  The  Virginia  constitution  of  1902  also  gives 
the  governor  power  to  recommend  the  amendment  of  a  bill  if 
he  approves  its  general  purpose,  but  disapproves  any  part 
thereof,  and  in  this  state  the  bill  if  amended  by  the  two  houses 
or  if  they  fail  to  amend  it  in  accordance  with  the  governor's 
recommendation,  is  again  returned  to  the  governor  for  his  ap- 
proval or  disapproval. 

Although  the  state  governors  in  no  case  possess  more  than 
a  limited  veto,  subject  to  be  overcome  by  subsequent  legislative 
action,  it  should  nevertheless  be  borne  in  mind  that  appro- 
priation bills  and  other  important  acts  are  usually  passed  dur- 
ing the  last  days  of  legislative  sessions  when  repassage  over 
executive  disapproval  is  practically  impossible;  the  governor 
thus  in  many  instances  exercises  what  is  equivalent  to  an  ab- 
solute veto.  A  constitutional  amendment  adopted  by  Califor- 
nia in  1908  increases  from  ten  to  thirty  days  the  time  within 
which  the  governor  may  approve  bills  after  the  adjournment  of 
the  legislature,  and  is  clearly  intended  to  give  him  more  time 
to  consider  legislation  which  must  fail  unless  he  does  not  ap- 
prove it.  Wisconsin  in  1908  increased  from  three  to  six  days 
the  time  within  which  the  governor  must  disapprove  a  measure 
in  order  to  prevent  its  enactment,  evidently  for  the  purpose 
of  giving  him  more  time  to  consider  legislation.  The  constitu- 
tional provisions  extending  the  veto  power  have,  it  would  seem, 
the  very  definite  purposes  of  placing  upon  state  governors  a 
larger  share  of  the  responsibility  for  state  legislative  activities. 

The  introduction  of  the  initiative  and  referendum  for  state 


268  READINGS  IN  CIVIL  GOVERNMENT 

laws  will,  however,  weaken  the  governor's  power  over  legisla- 
tion. The  constitutional  provisions  of  South  Dakota,  Oregon, 
Montana,  Oklahoma,  and  Missouri,  and  the  proposed  amend- 
ment in  North  Dakota,  expressly  provide  that  the  veto  power 
of  the  governor  shall  not  extend  to  measures  referred  to  a 
vote  of  the  people;  in  Maine  definite  provision  is  made  by 
which  the  governor's  veto  of  measures  initiated  by  petition 
may  be  overcome  by  the  use  of  the  referendum.  The  referen- 
dum in  Maine,  Oregon  and  Oklahoma,  and  the  proposed  refer- 
endum in  North  Dakota  extend  to  sections  or  to  parts  of  bills 
as  well  as  to  entire  measures,  and  thus  give  to  the  people  a 
revisory  power  over  state  legislation  broader  than  that  con- 
ferred upon  the  governors  in  any  states  except  Washington 
and  Ohio.  Nevada  by  its  amendment  for  the  compulsory 
referendum,  and  Michigan  in  introducing  the  optional  referen- 
dum apply  the  referenda  only  to  laws  enacted  by  the  regular 
legislative  organs  of  these  states,  and  thus  preserve  the  gov- 
ernor 's  influence  over  legislation. 

The  first  state  constitutions  conferred  almost  the  whole 
power  of  government  upon  the  legislatures,  but  since  the  end 
of  the  American  Revolution  there  has  been  a  fairly  constant 
movement  away  from  legislative  supremacy  in  the  States.  The 
distrust  of  legislatures  has  been  to  a  large  extent  responsible 
for  the  extension  of  the  powers  of  the  other  departments  of 
government,  and  for  the  numerous  specific  limitations  which 
have  been  placed  upon  the  exercise  of  the  legislative  power. 
The  diminution  of  legislative  power  has  been  brought  about 
(1)  by  the  assumption  of  legislative  functions  by  constitu- 
tional conventions,  and  by  the  adoption  of  legislation  through 
constitutional  amendment;  (2)  by  the  extension  of  popular 
legislation  through  the  adoption  of  the  initiative,  referendum, 
and  recall;  these  institutions  will  almost  necessarily  reduce 
the  already  slight  responsibility  of  state  legislature;  (3)  by 
the  extension  of  the  governor's  share  in  legislation,  so  that  a 
large  part  of  the  responsibility  may  be  fixed  upon  him  for 
legislation  that  is  enacted;  (4)  by  the  imposition  of  positive 
restrictions  upon  the  power  of  the  legislature,  by  the  granting 


STATE  ADMINISTRATION  269 

to  cities  of  control  over  their  own  governmental  affairs,  and 
by  making  legislative  sessions  less  and  less  frequent. 

Mississippi  in  1890  took  the  first  step  toward  quadrennial 
sessions  by  providing  for  one  regular  session  of  the  legislature 
every  four  years,  and  for  a  special  session  in  the  interval  be- 
tween regular  sessions,  so  as  to  make  the  sessions  biennial,  but 
with  a  definite  limitation  as  to  the  subjects  to  be  considered 
at  the  special  session  and  as  to  its  duration.  Alabama  in  1901 
provided  specifically  for  quadrennial  sessions,  and  is  the  first 
state  to  provide  that  its  legislature  shall  meet  at  such  infre- 
quent intervals.  In  1902  a  proposed  constitutional  amend- 
ment for  regular  biennial  sessions  was  defeated  in  Mississippi ; 
and  in  1908  a  proposed  amendment  for  a  return  to  biennial 
sessions  was  defeated  in  Alabama.  The  movement  for  less  fre- 
quent legislative  sessions  will  hardly  turn  backward,  and  the 
need  for  frequent  sessions  is  disappearing  with  the  enactment 
of  ordinary  legislation  by  constitutional  amendment  and  re- 
vision, and  with  the  adoption  of  the  initiative  and  referendum 
as  in  Oregon  where  laws  may  be  enacted  without  the  participa- 
tion of  the  legislature. 

The  restrictions  upon  local  and  special  legislation  have  been 
brought  about  to  a  large  extent  by  the  abuse  of  legislative 
power,  and  will  probably  prove  an  advantage  to  the  legisla- 
tures themselves  by  confining  their  attention  to  general  meas- 
ures, whereas  legislatures  have  in  the  past  devoted  a  large  part 
of  their  time  to  local  problems  which  might  much  better  have 
been  left  to  the  local  governments.  Alabama,  Virginia,  and 
Oklahoma  specify  in  detail  a  number  of  subjects  upon  which 
local,  special,  and  private  legislation  may  not  be  enacted ;  and 
such  special  legislation  as  may  be  enacted  is  subject  to  rules 
of  procedure  intended  to  prevent  abuse.  Special  acts  for  the 
incorporation  of  cities  have  been  forbidden  in  Alabama,  Okla- 
homa, and  Michigan.  Virginia  permits  special  legislation  re- 
lating to  the  organization  of  cities  and  towns  by  a  vote  of  two- 
thirds  of  all  members  elected  to  each  house  of  the  legislature. 

The  Virginia  constitution,  besides  forbidding  special  legisla- 
tion upon  a  number  of  specified  subjects,  also  requires  that  in 


270  READINGS  IN  CIVIL  GOVERNMENT 

other  cases  general  laws  be  enacted  whenever  they  may  be 
made  applicable,  but  expressly  leaves  it  to  the  legislative  dis- 
cretion as  to  when  special  laws  are  needed,  and  is  therefore  not 
really  a  limitation  upon  legislative  power.  Oklahoma  has  a 
provision  similar  to  that  of  Virginia,  but  does  not  expressly 
provide  that  the  legislature  shall  have  discretion  to  determine 
whether  to  act  by  special  or  general  law.  Alabama  forbids  the 
enactment  of  a  special,  private,  or  local  law  in  any  case  already 
provided  for  by  a  general  law,  and  makes  the  determination 
of  this  matter  a  judicial  rather  than  a  legislative  question. 
The  constitutional  provision  that  "in  all  cases  where  a  gen- 
eral law  can  be  made  applicable  no  special  law  shall  be  en- 
acted" was  held  in  Kansas  to  mean  that  the  legislature  was 
vested  with  discretion  to  determine  when  a  general  law  could 
not  be  made  applicable ;  it  thus  rested  with  the  good  faith  of 
the  legislature  as  to  whether  this  constitutional  provision 
should  be  observed ;  an  amendment  to  the  Kansas  constitution 
in  1906  leaves  to  the  courts  the  question  whether  a  general  law 
may  be  made  applicable.  The  Michigan  constitution  of  1908 
does  not  enumerate  in  detail  the  subjects  upon  which  special 
laws  may  not  be  passed,  but  provides  that  the  legislature  shall 
pass  no  local  or  special  act  where  a  general  act  may  be  made 
applicable,  and  the  question  whether  a  general  act  could  have 
been  made  applicable  is  made  a  question  not  for  the  legislative 
determination,  but  for  the  decision  of  the  counts.  In  Michi- 
gan local  and  special  acts  do  not  take  effect  until  after  they 
have  been  approved  by  a  majority  of  the  electors  voting 
thereon  in  the  district  to  be  affected  by  such  acts.  .  .  . 

In  concluding  the  discussion  of  state  constitutional  develop- 
ment during  the  past  eight  years,  the  most  important  tenden- 
cies may  be  summarized  as  follows:  (1)  The  disappearance 
of  the  distinction  in  form  of  enactment  between  statutes  and 
constitutional  amendments  in  the  states  which  have  adopted 
the  initiative  and  referendum.  (2)  The  increase  of  popular 
control  over  state  legislation  through  the  spread  of  the  initia- 
tive and  referendum,  and  through  the  enactment  of  statutory 
matter  by  constitutional  amendment.  (3)  The  increase  of 


STATE  ADMINISTRATION  271 

popular  control  in  towns  and  cities  through  the  granting  to 
cities  of  power  to  frame  their  own  charters,  and  through  re- 
strictions placed  upon  state  legislatures  as  to  local  and  special 
legislation ;  and  through  the  introduction  of  the  local  initiative, 
referendum,  and  recall.  (4)  The  slight  increase  in  the  power 
of  the  governor  over  the  state  administration,  and  the  great 
increase  of  the  governor's  power  over  legislation.  (5)  The 
continued  diminution  of  the  power  of  state  legislatures, 
through  the  adoption  of  methods  of  popular  legislation, 
through  express  prohibitions  upon  legislatures  with  reference 
to  special  and  local  legislation,  and  through  the  increased 
power  granted  to  the  governor  over  legislation.  (6)  The  ef- 
forts to  subject  public  service  corporations  to  more  adequate 
control. 


55.   THE  STATE   GOVERNOR. 

Recent  changes  in  State  Constitutions  have  considerably  enlarged 
the  duties  and  powers  of  the  governor.  What  the  position  of  the 
governor  was  twenty  years  ago  before  these  changes  took  place,  and 
still  is  to  a  large  degree  in  many  States,  is  described  by  Mr.  James 
Bryee  in  the  following  extract: 

Compare  the  Federal  President  with  the  State  Governor. 
The  former  has  foreign  policy  to  deal  with,  the  latter  has 
none.  The  former  has  a  vast  patronage,  the  latter  has  scarcely 
any.  The  former  has  the  command  of  the  army  and  navy, 
the  latter  has  only  the  militia,  insignificant  in  ordinary  times. 
The  former  has  a  postoffice,  but  there  is  no  State  postal-service. 
Little  remains  to  the  Governor  except  his  veto,  which  is  not  so 
much  an  executive  as  a  legislative  function ;  the  duty  of  main- 
taining order,  which  becomes  important  only  when  insurrec- 
tion or  riot  breaks  out;  and  the  almost  mechanical  function 
of  representing  the  State  for  various  matters  of  routine,  such 
as  demanding  from  other  States  the  extradition  of  offenders, 
issuing  writs  for  the  election  of  congressmen  or  of  the  State 
legislature,  receiving  the  reports  of  the  various  State  officials. 


272  READINGS  IN  CIVIL  GOVERNMENT 

These  officials,  even  the  highest  of  them  who  correspond  to 
the  cabinet  ministers  in  the  National  government,  are  either 
mere  clerks,  performing  work,  such  as  that  of  receiving  and 
paying  out  State  moneys,  strictly  defined  by  statute,  and 
usually  checked  by  other  officials,  or  else  are  in  the  nature  of 
commissioners .  of  inquiry,  who  may  inspect  and  report,  but 
can  take  no  independent  action  of  importance.  Policy  does 
not  lie  within  their  province;  even  in  executive  details  their 
discretion  is  confined  within  narrow  limits.  They  have,  no 
doubt,  from  the  governor  downwards,  opportunities  for  job- 
bing and  malversation;  but  even  the  less  scrupulous  are  re- 
strained from  using  these  opportunities  by  the  fear  of  some 
investigating  committee  of  the  legislature,  with  possible  im- 
peachment or  criminal  prosecution  as  a  consequence  of  its 
report.  Holding  for  terms  which  seldom  exceed  two  or  three 
years,  they  feel  the  insecurity  of  their  position ;  but  the  desire 
to  earn  re-election  by  the  able  and  conscientious  discharge  or 
their  functions,  is  a  less  effective  motive  than  it  would  be  if 
the  practice  of  re-electing  competent  men  were  more  frequent. 
Unfortunately  here,  as  in  Congress,  the  tradition  of  many 
States  is,  that  when  a  man  has  enjoyed  an  office,  however  well 
he  may  have  served  the  public,  some  one  else  ought  to  have 
the  next  turn. 

The  reason,  therefore,  why  the  system  I  have  sketched  rubs 
along  in  the  several  States  is,  that  the  executive  has  little  to 
do,  and  comparatively  small  sums  to  handle.  The  further 
reason  why  it  has  so  little  to  do  is  two-fold.  Local  government 
is  so  fully  developed  that  many  functions,  which  in  Europe 
would  devolve  on  a  central  authority,  are  in  all  American 
States  left  to  the  county,  or  the  city,  or  the  township,  or  the 
school  district.  These  minor  divisions  narrow  the  province  of 
the  State,  just  as  the  State  narrows  the  province  of  the  central 
government.  And  the  other  reason  is,  that  legislation  has  in 
the  several  States  pushed  itself  to  the  farthest  limits,  and  so 
encroached  on  subjects  which  European  legislatures  would 
leave  to  the  executive,  that  executive  discretion  is  extinct,  and 
the  officers  are  the  mere  hands  of  the  legislative  brain,  which 


STATE  ADMINISTRATION  273 

directs  them  by  statutes  drawn  with  extreme  minuteness,  care- 
fully specifies  the  purposes  to  which  each  money  grant  is  to 
be  applied,  and  supervises  them  by  inquisitorial  committees. 

It  is  a  natural  consequence  of  these  arrangements  that  State 
office  carries  little  either  of  dignity  or  of  power.  A  place  is 
valued  chiefly  for  its  salary,  or  for  such  opportunities  of 
obliging  friends  or  securing  commissions  on  contracts  as  it 
may  present  though  in  the  greatest  States  the  post  of  attorney- 
general  or  comptroller  is  often  sought  by  able  men.  A  State 
Governor,  however,  is  not  yet  a  nonentity.  In  more  than  one 
State  a  sort  of  perfume  from  the  old  days  lingers  round  the 
office,  as  in  Massachusetts,  where  the  traditions  of  last  century 
were  renewed  by  the  eminent  man  who  occupied  the  chair 
of  the  commonwealth  during  the  War  of  Secession  and  did 
much  to  stimulate  and  direct  the  patriotism  of  its  citizens. 
Though  no  one  would  nowadays,  like  Mr.  Jay  in  1795,  ex- 
change the  chief  justiceship  of  the  United  States  for  the  gov- 
ernorship of  his  State,  a  Cabinet  minister  will  sometimes,  as 
Mr.  Folger  did  a  few  years  ago,  seek  to  quit  his  post  in  order 
to  obtain  the  governorship  of  a  great  State  like  New  York. 
In  all  States,  the  Governor,  as  the  highest  official  and  the 
depositary  of  State  -authority,  may  at  any  moment  become  the 
pivot  on  whose  action  public  order  turns.  In  the  Pennsyl- 
vania riots  of  1877  it  was  the  accidental  absence  of  the  Gov- 
ernor on  a  tour  in  the  "West  which  enabled  the  forces  of  sedi- 
tion to  gather  strength.  During  the  more  recent  disturbances 
which  large  strikes,  especially  among  railway  employes,  have 
caused  in  the  West,  the  prompt  action  of  a  Governor  has  pre- 
served or  restored  tranquillity  in  more  than  one  State ;  while 
the  indecision  of  the  Governor  of  an  adjoining  one  has  em- 
boldened strikers  to  stop  traffic,  or  to  molest  workmen  who  had 
been  hired  to  replace  them.  So  in  a  commercial  crisis,  like 
that  which  swept  over  the  Union  in  1837,  when  the  citizens 
are  panic-stricken  and  the  legislature  hesitates,  much  may 
depend  on  the  initiative  of  the  Governor,  to  whom  the  eyes 
of  the  people  naturally  turn.  His  right  of  suggesting  legisla- 
tive remedies,  usually  neglected,  then  becomes  significant,  and 

18 


274  READINGS  IN  CIVIL  GOVERNMENT 

may  abridge  or  increase  the  difficulties  of  the  community. 

It  is  not,  however,  as  an  executive  magistrate  that  a  State 
Governor  usually  makes  or  mars  a  reputation,  but  in  his  quasi- 
legislative  capacity  of  agreeing  to  or  vetoing  bills  passed  by 
the  legislature.  The  merit  of  a  Governor  is  usually  tested  by 
the  number  and  the  boldness  of  his  vetoes;  and  a  European 
enjoys,  as  I  did  in  the  State  of  New  York  in  1870,  the  odd 
spectacle  of  a  Governor  appealing  to  the  people  for  re-election 
on  the  ground  that  he  had  defeated  in  many  and  important 
instances  the  will  of  their  representatives  solemnly  expressed 
in  the  votes  of  both  Houses.  That  such  appeals  should  be 
made  and  often  made  successfully,  is  due  not  only  to  the  dis- 
trust which  the  people  entertain  of  their  legislatures,  but  also, 
to  their  honour  be  it  said,  to  the  respect  of  the  people  for  cour- 
age. They  like  above  all  things  a  strong  man ;  just  as  English 
constituencies  prefer  a  candidate  who  refuses  to  swallow 
pledges  or  be  dictated  to  by  cliques. 

This  view  of  the  Governor  as  a  check  on  the  legislature 
explains  why  the  Americans  think  it  rather  a  gain  than  an 
injury  to  the  State  that  he  should  belong  to  the  party  which 
is  for  the  time  being  in  a  minority  in  the  legislature.  How  the 
phenomenon  occurs  may  be  seen  by  noting  the  different  meth- 
ods of  choice  employed.  The  Governor  is  chosen  by  a  mass 
vote  of  all  citizens  over  the  State.  The  representatives  are 
chosen  by  the  same  voters,  but  in  districts.  Thus  one  party 
may  have  a  majority  on  a  gross  poll  of  the  whole  State,  but 
may  find  itself  in  a  minority  in  the  larger  number  of  electoral 
districts.  This  happens  in  New  York  State,  on  an  average,  in 
two  years  out  of  every  three.  The  mass  vote  shows  a  demo- 
cratic majority,  because  the  Democrats  are  overwhelmingly 
strong  in  New  York  City,  and  some  other  great  centres  of 
population.  But  in  the  rural  districts  and  most  of  the  smaller 
towns  the  Republican  party  commands  a  majority  sufficient 
to  enable  them  to  carry  most  districts.  Hence,  while  the  Gov- 
ernor is  usually  a  Democrat,  the  legislature  is  often  Republi- 
can. Little  trouble  need  be  feared  from  the  opposition  of  the 
two  powers,  because  such  issues  as  divide  the  national  parties 


STATE  ADMINISTRATION  275 

have  scarce  any  bearing  on  State  affairs.  Some  good  may  be 
hoped,  because  a  Governor  of  the  other  party  is  more  likely 
to  check  or  show  up  the  misdeeds  of  a  hostile  Senate  or  As- 
sembly than  one  who,  belonging  to  the  group  of  men  which 
guides  the  legislature,  has  a  motive  for  working  with  them, 
and  may  expect  to  share  any  gains  they  can  amass. 

56.   PUBLIC    SERVICE    COMMISSIONS. 

Among  the  problems  of  State  government  which  have  arisen  dur- 
ing the  last  quarter  of  a  century,  none  have  pressed  more  constantly 
and  prominently  for  settlement  than  that  having  to  do  with  the 
proper  regulation  of  public  service  corporations.  Ever  since  the  de- 
velopment of  the  newer  forms  of  rapid  transit,  cheap  transportation, 
and  improved  methods  of  lighting,  the  corporations  which  have  fur- 
nished these  services  have  been  a  thorn  in  the  side  of  good  govern- 
ment, both  State  and  municipal.  In  1906,  the  State  of  New  York 
took  a  long  step  toward  the  settlement  of  this  question  by  the  pas- 
sage of  a  public  service  commission  law.  Similar  laws  have  been 
passed  recently  in  other  States,  notably  Wisconsin,  and  still  other 
States  have  such  measure  under  consideration.  In  the  following 
selection,  Mr.  T.  M.  Osborne,  a  member  of  the  New  York  Commis- 
sion, appointed  by  Governor  Hughes,  referring  to  the  law  of  that 
State,  discusses  the  relation  of  public  service  corporations  to  the 
State  in  general:  [1908]. 

To  call  this  law  a  piece  of  radical  legislation  is  to  speak 
mildly ;  it  seems  to  mark  an  epoch  in  the  history  of  New  York 
State ;  for  the  corporations  affected  by  the  stringent  provisions 
of  the  law  are  among  those  upon  which  the  whole  structure 
of  our  present  business  system  rests.  Without  the  railroads 
modern  commerce  would  be  impossible ;  without  the  street  rail- 
roads our  cities  could  not  spread  their  vast  populations  out 
into  their  ever-growing  suburbs,  and  social  conditions  would 
be  completely  altered ;  gas  and  electricity  are  not  merely  essen- 
tial to  our  comfort,  they  are  necessary  to  the  existing  order — 
all  of  these  public  utilities  are  vital  elements  in  the  lives  of 
every  one  of  us,  and  a  law  which  compels  such  a  complete  re- 
adjustment of  their  relations  to  the  state  on  the  one  side  and 


276  READINGS  IN  CIVIL  GOVERNMENT 

the  public  on  the  other  is  not  merely  radical,  it  is  revolu- 
tionary. .  .  . 

When  our  great  modern  public  utilities  first  came  into  being, 
they  were  not  recognized  as  infant  monopolies.  When  a  man 
wished  to  build  a  railroad  he  was  regarded  only  as  a  daring 
adventurer  who  was  about  to  start  a  new  and  superior  line  of 
coaches  on  a  strange  private  highway — merely  a  new  element 
of  competition.  It  was  the  same  with  a  gas  company,  gas 
being  at  first  only  a  new-fangled  light  trying  to  prove  its 
doubtful  superiority  over  lamps  and  candles.  Electricity  was 
in  its  turn  only  a  competitor  of  gas ;  a  street-car  line  a  competi- 
tor of  the  more  expensive  cab  company ;  an  interurban  trolley 
a  competitor  of  the  railway.  All  these  were  merely  new  and 
comparative  conveniences  which  science  was  putting  within 
our  reach,  which  we  could  trust  private  ownership  to  develop 
and  which  competition  would  regulate.  The  ordinary  Ameri- 
can merchant  or  manufacturer,  intent  upon  his  own  business 
and  satisfied  if  he  was  making  it  pay,  was  also  satisfied  if  he 
was  getting  from  railroad,  express  company,  telegraph,  or 
telephone  the  service  that  his  own  particular  business  re- 
quired; and  he  was  little  inclined  to  question  the  right  of  in- 
vestors, who  were  bringing  to  him  the  business  advantage  of  a 
very  useful  public  service,  to  do  what  he  himself  was  doing — 
make  as  much  money  as  possible  on  the  investment.  And 
while  merchants  and  manufacturers  were  thus  absorbed  and 
the  general  public  indifferent,  what  was  originally  a  mere  com- 
petitive public  convenience  was  fast  becoming  a  public  utility ; 
and  then,  before  we  realized  it,  had  become  an  absolute  public 
necessity.  We  suddenly  woke  to  find  the  business  world  strug- 
gling to  readjust  itself  to  new  and  strange  conditions — to  the 
pressure  of  brutal  bigness ;  enormous  railway  systems,  gigantic 
mergers,  world-wide  trusts,  accumulators  of  fabulous  millions ; 
the  vast  scale  of  the  operations  seemed  in  itself  terrify- 
ing. .  .  . 

If  it  has  taken  us  a  long  time  to  realize  that  public-service 
corporations  are  in  their  nature  monopolistic,  it  is  also  taking 
us  a  long  time  to  get  over  the  idea  that  the  safeguard  of  the 


STATE  ADMINISTKATION  277 

public  is  competition.  Therefore,  legislatures  have  chartered 
rival  railroads  and  common  councils  have  granted  franchises  to 
rival  trolley,  gas  and  electric  companies;  only  to  find  that 
almost  inevitably  after  a  brief  period  of  cut-throat  competi- 
tion, with  threatened  failure  to  both  companies,  there  was  a 
consolidation,  over-capitalization  and  relatively,  if  not  actu- 
ally, higher  charges ;  and  thus  for  the  poor  consumer  the  last 
state  was  worse  than  the  first. 

In  New  York  we  seem  at  last  to  have  waked  up  to  the  fact 
that  in  these  public  utilities  there  not  only  never  has  been  any 
genuine  competition,  but  from  the  nature  of  the  case  there 
never  could  be ;  we  are  also  learning  that  if  justice  is  to  be  done 
to  the  public  as  well  as  to  the  corporation — to  the  buyer  as 
well  as  to  the  seller — something  else  must  be  substituted  in 
place  of  competition,  and  that  something  we  are  now  to  try  in 
the  shape  of  state  regulation. 

The  policy  of  state  interference  in  any  business  is  not  one 
that  we  naturally  take  kindly  to  in  this  country ;  and  we  have 
certainly  not  been  hasty  in  trying  it  in  New  York  State.  So 
long  ago  as  1879,  the  Hepburn  Committee  investigation 
pointed  out  some  of  the  evils  of  rebates  and  other  railway 
practices  as  clearly  as  has  ever  been  done ;  yet  it  was  1906  be- 
fore the  legislature  took  any  effective  action  in  regard  to  the 
matter ;  and  our  municipalities  as  well  as  the  state  have  been 
very  slow  to  exert  their  powers.  Of  course,  opinions  will  con- 
tinue to  differ  as  to  the  advisability  of  state  interference ;  but 
in  the  judgment  of  those  who  read  best  the  trend  of  the  public 
mind,  the  time  has  gone  by  when  there  can  be  much  dispute 
over  the  main  contention;  the  only  question  is  how  far  the 
state  shall  go.  For  the  exact  point  where  private  action  may 
best  end,  and  the  community  itself  should  take  hold,  has  cer- 
tainly not  been  discovered  yet ;  nor  is  it  likely  ever  to  be  set- 
tled, for  social  conditions  shift  quite  as  rapidly  as  social  ex- 
periments are  made;  and  where  can  we  draw  the  dividing 
line? 

Some  lawyers  will  tell  us  that  there  is  no  dividing  line 
in  this  particular  matter,  that  there  is  no  essential  difference 


278  READINGS  IN  CIVIL  GOVERNMENT 

between  a  public-service  corporation  and  any  other,  and  that 
it  is  simply  a  question  of  public  policy  as  to  what  business  the 
state  shall  undertake  to  regulate,  and  what  it  shall  leave  with- 
out interference.  Others  will  say  that  however  hard  it  is  to 
draw  a  dividing  line,  yet  there  is  certain  territory  which  is 
quite  obviously  on  one  side  of  the  line,  wherever  the  line  may 
be,  and  certain  territory  quite  as  obviously  on  the  other.  Also 
it  seems  to  be  true  that  a  certain  business  may  stand  on  one 
side  of  the  line  in  one  generation  and  occupy  the  other  side  in 
the  next.  For  many  centuries  it  was  public  policy  to  subject 
the  innkeeper  to  stringent  regulation  in  the  public  interest; 
but  with  the  growth  of  modern  conditions  it  has  ceased  to  be 
necessary,  and  a  modern  hotel  company  can  hardly  be  classed 
as  a  public-service  corporation.  On  the  other  hand,  when  a 
virtual  monopoly  in  the  supply  of  some  necessity  of  life  has 
come  into  existence,  that  business  certainly  is  drifting  over  the 
line  into  territory  where  some  sort  of  public  regulation  seems 
inevitable. 

All  the  businesses  which  are  placed  under  the  jurisdiction 
and  supervision  of  the  New  York  Public  Service  Commission 
are,  more  or  less,  monopolies  depending  upon  some  form  of 
public  grant  or  franchise.  Not  only  are  our  railways  great 
state  highways,  but  the  companies  that  own  them  own  also  the 
means  of  traversing  them  and  of  transporting  goods  along 
them.  Our  street  railways  occupy  the  public  thoroughfares 
under  exclusive  grants  from  municipalities.  The  gas  com- 
panies must  get  permission  from  the  city  to  dig  up  the  public 
streets,  and  electric-light  companies  to  erect  their  poles.  Ex- 
press, freight-line,  and  sleeping-car  companies  only  supple- 
ment the  work  of  the  railway.  Not  one  would  be  able  to  exist 
except  for  the  public  grant  which  is  its  foundation ;  it  is  there- 
fore to  the  state  that  we  must  now  turn  for  relief  against  the 
power  of  the  monopolies  which  have  been  allowed  to  rise  upon 
that  foundation. 

When  we  come  to  a  consideration  of  these  franchises  the 
first  thing  we  find  is,  that,  although  in  most  cases  the  corpora- 
tion had  paid  nothing  to  the  state  or  municipality  for  the  fran- 


STATE  ADMINISTRATION  279 

chise,  yet  no  sooner  has  the  franchise  been  secured  than  it  has 
been  capitalized,  often  at  an  enormously  inflated  valuation,  and 
the  resulting  securities  have  been  marketed  in  the  same  way 
as  those  for  which  good  solid  cash  has  been  paid. 

Now,  as  a  matter  of  fact,  the  value  of  a  franchise  is  very 
fluctuating — a  thing  impossible  to  fix.  The  franchise  of  a  non- 
existent railroad  is  of  no  inherent  value;  on  the  other  hand, 
the  value  of  the  same  franchise,  after  fifty  years '  development 
of  the  road  and  growth  of  the  communities  about  it,  may 
almost  exceed  imagination ;  but  since  the  state  has  claimed  the 
right  to  regulate  rates,  thus  demolishing  the  theory  that  the 
railroad  conducts  a  private  business,  the  value  of  every  rail- 
road franchise  in  the  state  as  a  basis  for  an  issue  of  securities 
is  very  materially  diminished  if  not  obliterated. 

If  the  franchise  is  something  of  value,  the  state  should  cer- 
tainly not  give  it  away ;  if  it  is  of  no  value,  then  the  corporation 
should  not  capitalize  it ;  but  to  secure  it  for  nothing  and  then 
capitalize  it,  is  "special  privilege"  with  a  vengeance.  The 
worst  of  the  matter,  however,  is  this,  that  when  the  corpora- 
tion proceeded  to  capitalize  the  franchise,  upon  the  theory  that 
it  represented  an  asset  upon  which  returns  in  the  shape  of 
dividends  should  be  paid — the  same  as  if  it  were  money  in- 
vested in  the  enterprise — the  corporation  was  on  the  one  hand 
receiving  from  the  state  a  gift  of  more  or  less  value,  and  on 
the  other  forcing  the  state  to  pay  perpetual  tribute  upon  the 
very  thing  it  had  given  away — to  the  tune  of  many  times  its 
actual  value  when  the  promoters  were  clever  enough  to  "dis- 
count the  future"  in  their  issues  of  stock.  When  you  come 
to  dissect  the  matter  and  look  it  over  coolly  it  does  seem  as  if 
this  were  on  the  whole  the  most  skillful  confidence  game  which 
has  ever  been  worked  on  the  public;  for  the  experienced 
financier  after  capitalizing  his  franchise,  could  unload  the  wa- 
tered securities  on  the  "widow  and  orphan"  and  place  the 
resulting  cash  in  "gilt-edged"  investments  far  removed  from 
inquisitive  legislators  and  public-service  commissions. 

This  is  not  saying — and  let  this  point  be  made  quite  clear — 
that  there  have  not  been  many  noble  and  high-minded  men 


280  READINGS  IN  CIVIL  GOVERNMENT 

connected  with  our  public-service  corporations;  that  the  de- 
velopment of  public  utilities  has  not  been  of  immense  value 
to  the  community ;  nor  that  they  have  not  often  been  conducted 
with  the  highest  motives  of  philanthropic  enterprise.  But  it 
is  an  assertion  that  the  theory  underlying  the  treatment  of  the 
franchise  was  wrong  and  the  system  built  upon  it  was  bad; 
and  that  the  time  has  now  come  to  open  our  eyes  and  look  facts 
squarely  in  the  face.  When  we  do  so,  we  find  that  the  right 
of  the  legislature  of  state  or  city  to  give  away  a  franchise  in 
perpetuity  cannot  be  successfully  defended.  .  .  . 

A  few  words  in  closing  as  to  the  practical  operation  of  the 
law  in  New  York.  The  Commissions  have  been  in  existence 
only  nine  months — and  that  is  a  short  time  for  a  revolution 
to  be  consummated;  but  already  experience  has  shown  the 
immense  value  of  the  law.  Merchants  and  manufacturers  have 
a  powerful  tribunal  before  which  they  can  plead  for  justice 
and  efficiency ;  any  individual  with  a  well-grounded  complaint 
against  a  corporation  can  have  it  brought  to  its  attention  by 
the  Commission  far  more  forcibly  than  he  himself  can  bring 
it ;  the  issues  of  stocks  and  bonds  by  these  corporations  are  for 
the  first  time  subjected  to  rigid  scrutiny,  and  it  is  safe  to  say 
that  very  little  water  will  leak  into  such  securities  in  the  fu- 
ture— in  every  way  the  rights  and  interests  of  the  public  are 
being  safeguarded  as  never  before,  and  the  public  is  becoming 
aware  of  the  fact.  For  the  first  time  in  their  history  these 
great  corporations  realize  fully  that  there  is  a  higher  power 
above  them — a  power  to  which  the  public  can  now  appeal; 
they  have  been  shorn  of  their  ability  to  dispense  life  or  death 
to  businesses,  to  tyrannize  over  individuals,  or  to  ignore  the 
interests  of  the  public — for  above  them  is  the  state,  demand- 
ing justice  and  fair  treatment  for  every  one  of  its  citizens  and 
enabled  to  enforce  its  demands. 

It  is  only  fair  to  add  that  on  their  part  the  corporations 
have  shown  both  good  sense  and  good  temper  in  accepting  the 
law  graciously,  and  doing  all  in  their  power  thus  far  in  carry- 
ing out  its  provisions  and  the  orders  and  requests  of  the  Com- 
mission. Many  a  complaint  never  reaches  the  Commission; 


STATE  ADMINISTRATION  281 

the  complaint  is  remedied  by  the  corporation  as  soon  as  it  is 
made  known.  In  truth,  the  wiser  among  the  corporation  man- 
agers see  plainly  that  the  law  will  be  their  best  defense  against 
dangerous  legislation ;  that  the  Commission  will  stand  as  a  bar- 
rier against  injustice  to  the  corporations  on-the  one  hand,  while 
it  affords  relief  to  the  public  against  injustice  on  the  other. 
It  will  lead  to  a  safer  and  better  condition  of  things  all 
around — the  public  will  see  that  its  rights  are  safeguarded,  and 
demagogic  appeals  will  lose  their  force  and  effectiveness;  the 
corporations  will  be  protected  against  destructive  competition 
and  blackmail,  and  assured  of  a  fair  return  on  honest  invest- 
ment ;  hence  should  result  a  return  of  public  confidence  in  the 
securities  of  the  corporations — which  ought  in  turn  to  be  as 
good  and  conservative  investments  as  any  municipal  bonds. 
There  will  be  two  classes  of  people,  but  I  think  only  two  who 
will  suffer  from  the  law — those  among  the  capitalists  and  pro- 
moters who  are  too  greedy  to  be  content  with  their  fair  share, 
who  wish  to  reap  where  they  have  not  sown;  and  the  dema- 
gogues and  agitators  who  will  feel  themselves  cheated  out  of 
their  best  weapons  of  attack.  But  if  both  these  classes  could 
be  put  permanently  out  of  business  the  world  would  be  duly 
grateful. 

ADDITIONAL  READINGS 

1 — The  State  Governor,  Bryce,  J.,  American  Commonwealth, 
I,  531-4. 

2 — Appointment  and  Removal,  Finley  and  Sanderson,  The 
American  Executive,  93-104. 

3 — State  Administration  in  New  York,  Fairlie,  J.  A.,  Political 
Science  Quarterly,  XV,  50-74. 

4 — Public  Service  Commissions,  Hatton,  W.  H.,  Osborne,  T. 
M.,  and  Hudnall,  G.  B.,  Proceedings  of  the  American 
Political  Science  Association,  IV,  287-323. 

5 — The  Executive  Power,  Its  Unity  or  Division,  Finley  and 
Sanderson,  The  American  Executive,  29-47. 

6— The  Veto  and  Approval  of  Bills,  Ibid.,  72-82. 

7 — Townships  in  the  Central  States,  Fairlie,  J.  A.,  Local  Gov- 
ernment, 164-85. 

8— The  County,  Ibid.,  57-74. 


CHAPTER  XIII 
STATE  LEGISLATION 

57.   THE  DEFECTS  OP  STATE  LEGISLATION. 

The  present  tendency  in  State  government  is  to  limit  the  power 
of  the  legislature  by  placing  restrictions  upon  its  scope  of  authority 
in  the  State  constitution  and  by  enlarging  the  legislative  and  jul- 
ministrative  powers  of  the  governor.  This  has  been  due  in  no 
small  degree  to  the  exceedingly  poor  quality  of  the  legislative  prod- 
uct. In  fact  it  is  hardly  too  much  to  say,  however  unfortunate  the 
circumstance  may  be,  that  the  people  have  come  to  distrust  their 
legislatures.  In  the  following  extract  Professor  Paul  Reinsch  points 
out  some  of  the  salient  defects  of  State  legislation : 

The  excessive  number  of  legislative  enactments  annually 
produced  in  the  United  States  has  been  the  subject  of  much 
severe  comment;  yet,  when  the  organization  of  legislative 
bodies  is  considered,  this  over-activity  seems  but  natural.  All 
surrounding  conditions  are  favorable  to  it;  democracies  are 
impatient  of  delays  and  eager  for  action;  they  desire  to  see 
things  accomplished;  moreover,  they  have  not  lost  the  early 
optimism  with  respect  to  the  efficacy  of  legislative  remedies. 
The  individual  legislator  feels  that  his  services  will  not  be 
duly  appreciated  should  he  confine  his  activities  solely  to  a 
careful  weighing  of  proposed  legislation  and  a  critical  atti- 
tude toward  the  projects  of  his  associates.  Some  positive  ac- 
tion will  be  demanded  of  him;  even  if  he  does  not  put  his 
name  to  some  piece  of  general  legislation,  there  will  be  a 
large  number  of  local  interests  in  his  constituency  which  must 
be  looked  after.  As  a  result  of  these  conditions,  the  amount 
of  legislation  produced  in  the  United  States  in  the  alternate 

282 


STATE  LEGISLATION  283 

years,  when  the  larger  number  of  legislatures  meet,  is  as- 
tounding in  itself,  and,  when  compared  with  the  legislation  of 
other  civilized  states,  it  indicates  a  crudeness  of  the  legislative 
function,  a  lack  of  careful  consideration,  which  are  alarming. 
The  number  of  legislative  enactments  passed  in  the  states  in  a 
single  year  has  exceeded  fourteen  thousand,  covering  in 
printed  form  some  twenty  to  twenty-five  thousand  pages.  Dur- 
ing the  five  years  from  1899  to  1904  the  total  number  of  acts 
passed  by  American  legislatures  was  45,552.  The  political  and 
social  service  which  in  our  own  system  required  this  flood  of 
enactment  was  in  the  principal  European  states  performed  by 
a  few  hundred  statutes.  Of  these  45,552  enactments,  16,320 
were  public  or  general  laws,  while  the  remainder  were  special 
and  local.  .  .  . 

It  is  the  prominence  and  the  great  amount  of  private  and 
local  legislation  which  constitutes  the  chief  blemish  of  the 
American  system.  As  we  have  already  seen,  the  attempt  has 
been  made  to  cut  down  the  amount  of  private  legislation  by 
specific  and  general  constitutional  prohibitions;  and  while 
some  relief  has  resulted  from  this  method,  it  has  on  the  other 
hand  led  to  the  frequent  use  of  shifty  practices  by  which 
local  legislation  is  given  the  form  of  general  law,  and  thus,  in 
addition  to  its  inherent  harmf ulness,  has  assisted  in  unsettling 
the  stability  of  the  legal  system.  The  volume  of  legislation 
varies  in  direct  proportion  to  the  amount  of  special  and  local 
legislation  passed.  Thus  in  1903,  the  state  where  legislation 
was  most  prolific  was  North  Carolina,  whose  constitution  con- 
tains practically  no  restrictions  on  local  or  private  legislation, 
and  whose  governor  possesses  no  veto  power.  The  states  in 
which  measures  prohibitory  or  restrictive  of  legislation  have 
been  taken,  have  as  a  result  perceptibly  lessened  their  legis- 
lative overflow.  Alabama 's  radical  move  in  increasing  the  in- 
terval between  regular  sessions  of  the  legislature  to  four  years, 
was  brought  about  by  a  very  cloudburst  of  local  legislation. 
The  sessions  of  1891  and  1901,  passed  approximately  one  law 
of  general  character  to  every  eleven  of  private,  local,  or  spe- 
cial application.  In  the  latter  session,  out  of  a  total  of  1,132 


284  READINGS  IN  CIVIL  GOVERNMENT 

measures  poured  out  from  the  legislative  mill,  only  about  90 
were  general  in  nature.     .     .     . 

In  commonwealths,  as  in  the  national  Congress,  the  worst 
phase  of  the  localizing  legislation  appears  not  in  the  flood  of 
local  and  special  bills,  but  in  the  defeating,  embarrassing,  and 
mutilating  of  general  laws  in  order  to  please  a  special  interest. 
In  the  first  place,  the  very  volume  of  local  measures  with  their 
peculiar  importance  to  the  individual  legislator,  subordinates 
vital  interests  to  these  special  petty  arrangements.  As  a  result 
of  this  condition,  the  measures  of  most  far-reaching  impor- 
tance are  crowded  to  one  side,  and  receive  passage  perhaps,  but 
not  wise  and  concentrated  attention.  In  its  extreme,  the  lo- 
calizing tendency  leads  to  a  system  of  group  representation. 
The  liberum  veto  of  senatorial  unanimous  consent  finds  a  not 
distant  analogy  in  the  state  legislator's  frequent  ability  to  de-' 
feat  a  measure  objected  to  by  the  interests  of  his  locality.  The 
organs  of  local  government  themselves  are  the  greatest  suffer- 
ers from  the  excess  of  special  legislation.  The  function  of 
county  or  municipal  home-rule  is  in  some  cases  atrophied,  and 
in  every  instance  mutilated,  by  the  constant  interference  of  the 
state  authority.  Measures  that  favor  one  locality  usually  do 
so  at  the  expense  of  sister  communities.  A  factor  which  in- 
creases the  likelihood  of  favorable  action  upon  proposals  for 
local  legislation  is  the  quite  usual  practice  of  referring  such 
bills  to  the  delegation  from  the  locality  whose  interests  are  di- 
rectly affected  by  the  measure  in  question.  Matters  like  these 
are  very  rarely  made  subjects  of  party  action,  and  by  mutual 
arrangement  meet  with  little  or  no  opposition. 

The  total  prohibition  of  private  and  local  legislation  would 
not  be  feasible.  The  power  to  make  such  enactments  must  be 
lodged  somewhere;  and  if  extreme  prohibition  should  be  re- 
placed upon  the  legislature,  the  circumvention  of  the  consti- 
tutional law  would  only  be  increased.  Other  methods  of  deal- 
ing with  this  problem  are  therefore  at  present  favored  by  the 
men  most  conversant  with  the  situation.  The  New  Jersey  con- 
stitution of  1876  provided  that  the  legislature  "shall  not  pass 
any  act  regulating  the  internal  affairs  of  towns  and  coun- 


STATE  LEGISLATION  285 

ties,"  leaving  this  to  the  local  boards.  The  result  of  this 
policy  has  been  gratifying.  While  in  the  year  preceding  1876 
the  average  number  of  local  laws  passed  by  the  legislature  was 
over  300,  in  the  years  from  1876  to  1905  it  stood  at  an  incon- 
siderable total  per  year.  A  commission  of  the  New  York  leg- 
islature in  1896,  which  had  made  a  careful  investigation  of  the 
defects  in  legislative  methods,  fixed  upon  private  and  local 
legislation  as  a  chief  source  of  abuse.  It  pointed  to  the  Eng- 
lish system  of  private  bill  procedure  as  a  model.  Though  for 
the  time  being  this  standard  is  unfortunately  not  achievable  in 
the  United  States  on  account  of  special  conditions,  the  commis- 
sion recommended  some  modifications  of  procedure  which  in 
principle  are  a  part  of  the  English  system.  Thus  it  would 
require  measures  dealing  with  local  and  special  interests  to  be 
filed  some  time  before  presentation  in  the  legislature,  notice 
to  be  given  to  those  likely  to  be  affected  by  their  operation, 
and  counter-petitions  to  be  received  from  adverse  interests. 
In  a  number  of  states  notice  of  certain  private  bills  is  already 
required  by  constitutional  provision,  by  enactment,  or  by  the 
rules  of  legislative  procedure.  Another  suggestion  of  the 
commission  is  that  private  and  local  bills  be  placed  upon  a 
separate  calendar,  and  that  the  expense  of  such  legislation 
be  borne  by  the  parties  interested. 

It  is  not  surprising  that  under  prevailing  conditions  the 
legislative  product  has  lost  in  quality  what  it  has  gained  in 
amount.  When  it  has  become  physically  impossible  for  a 
legislator  to  give  a  careful  reading  to  all  the  legislative  bills 
proposed,  even  should  he  use  the  entire  working  time  of  the 
session,  it  is  of  course  hopeless  to  expect  the  due  consideration, 
weighing,  and  sifting  of  all  the  measures.  Instead  of  fulfilling 
the  ideal  of  rationally  and  thoroughly  considering  all  pro- 
posed legislation,  the  work  of  the  legislator  ordinarily  re- 
solves itself  to  seeing  that  his  own  bills  may  receive  a  fair 
consideration,  and  to  making  such  arrangements  with  other 
members  that  by  mutual  assistance  their  respective  measures 
may  have  some  chance  of  passage.  In  such  arrangements  the 
merits  of  individual  bills  are  a  minor  consideration,  the  princi- 


286  READINGS  IN  CIVIL  GOVERNMENT 

pal  point  being  to  ascertain  what  members  are  for  the  pro- 
posed measure,  and  what  they  are  able  to  do  for  other  mem- 
bers in  return  for  the  assistance  of  the  latter.  It  is  therefore 
not  surprising  that  our  legislation  should  in  general  be  hap- 
hazard, inconsistent,  and  often  absolutely  incompatible,  and 
that  there  should  be  absent  from  it  the  effective  correlation 
of  new  measures  with  the  existing  body  of  the  law. 

Many  statutes  are  intolerably  confused  and  contradictory 
on  account  of  the  lack  of  logical  acumen  on  the  part  of  the 
framers,  or  on  account  of  the  use  of  that  convoluted  verbiage 
which  has  become  the  bane  of  legal  pleading  in  so  many  states. 
Enactments  are  overloaded  with  detailed  regulations  of  mat- 
ters which  could  much  better  be  left  to  the  executive  agencies. 
They  are  often  filled  with  repetitions  and  specifications  prob- 
ably designed  to  safeguard  the  public,  but,  on  account  of  their 
technical  and  involved  nature,  these  render  the  legislative 
product  obscure  and  full  of  passages  which  necessitate  further 
legal  interpretation.  Sometimes  the  slipshod  methods  of  the 
clerical  employes  are  responsible  for  the  uncertainty  of  stat- 
utes. Thus  in  the  McKinley  act  the  sections  relating  to  the 
tobacco  rebate  were  omitted,  though  Congress  had  passed 
them,  and  the  President  actually  signed  a  different  bill  from 
the  one  that  had  passed  Congress.  In  Alabama  when  certain 
important  words  had  thus  been  omitted  from  a  statute,  the 
governor,  after  the  adjournment  of  the  legislature,  summoned 
the  committee  chairman  and  inserted  the  phrase  in  the  en- 
grossed copy.  The  whole  process  of  engrossing  is  an  anti- 
quated method  which  has  profitably  been  displaced  in  Indiana 
by  having  the  bills,  as  amended  for  a  third  reading,  printed, 
so  that  mistakes  can  be  readily  discovered  by  the  legislators 
upon  examination  before  final  passage. 

The  principal  source  of  confusion  in  the  statute  law  is 
the  practice  of  amendment  without  due  regard  to  the  new 
relations  with  other  portions  of  the  law,  created  by  such 
amendments ;  or  the  process  of  implied  amendment  by  simply 
passing  a  measure  contradictory  to  former  legislation,  with- 
out any  serious  attempt  to  bring  the  older  and  the  newer 


STATE  LEGISLATION  287 

law  into  harmony  with  each  other  and  definitely  to  super- 
sede a  portion  of  the  older  law  by  the  new  enactment.  Mr. 
Bishop  in  his  "Statutory  Crimes"  has  forcibly  described 
and  characterized  this  practice  in  the  following  language: 
"Some  of  the  greatest  difficulties  occur  where  enactment 
has  been  piled  on  enactment — where  nothing  is  in  terms 
repealed,  but  this  year  a  statute  is  added  to  what  was  written 
last  year,  and  so  from  year  to  year — and  while  the  later  law 
plainly  repeals  in  part  the  prior,  by  construction,  it  as 
plainly  does  not  repeal  the  whole;  yet,  where  the  repeal 
begins  and  Avhere  it  ends,  it  is  difficult  to  tell."  Congress 
has  often  amended  laws  that  were  no  longer  in  force,  hav- 
ing been  repealed  before,  or  it  has  passed  amendments  en- 
tirely overlooking  former  amendments  to  the  same  statute. 
Laws  already  existing  are  frequently  overlooked  by  the 
legislators  and  are  re-enacted  in  more  or  less  modified  form. 
The  confusion  in  the  statute  law  of  many  states  is  even 
worse  than  in  the  federal  law.  The  canal  legislation  of 
New  York  presents  a  labyrinth  of  almost  hopeless  and  irra- 
tional intricacy.  Year  after  year  laws  were  passed  in  utter 
disregard  of  former  enactments,  and  the  administrative  offi- 
cers of  the  state  were  left  to  decide  for  themselves  what 
parts  of  the  enacted  laws  were  actually  in  force.  With  refer- 
ence to  the  laws  concerning  public  improvements  in  New 
York  City  and  Brooklyn,  the  New  York  Court  of  Appeals 
declared  that  enactments  had  been  re-enacted,  modified,  and 
superseded  so  often  that  it  was  difficult  to  ascertain  just 
what  statutes  were  in  force  at  any  given  time.  If  the  high- 
est court  of  the  state  finds  such  difficulty,  it  may  be  imagined 
that  to  the  ordinary  citizen  the  confusion  is  hopeless,  and 
that  to  the  lawyer  it  means  chiefly  the  opportunity  for 
unending  litigation.  In  1893,  the  Pennsylvania  corporation 
act  passed  in  1874  was  made  to  include  new  corporations,  but 
the  amendments  passed  in  the  intervening  years  were  not 
mentioned,  and  their  validity  and  application  were  thereby 
thrown  into  doubt.  The  governor,  though  approving  the 
measure  on  account  of  its  general  effect,  severely  criticized 


288  READINGS  IN  CIVIL  GOVERNMENT 

its  structure.  The  Pennsylvania  act  of  April  18,  1895,  was 
drawn  in  such  a  slovenly  manner  that  the  interpretation 
given  to  it  by  the  courts  necessitated  the  passage  of  three 
curative  statutes.  The  Pennsylvania  legislature  also  made 
a  clumsy  attempt  to  revive  certain  local  legislation  by  repeal- 
ing former  repeals  of  such  enactments.  In  Massachusetts 
the  consolidation  of  two  laws  requiring  the  closing  of  different 
classes  of  drinking  places  at  11  and  12  o'clock,  respectively, 
was,  on  account  of  the  use  of  a  semicolon,  given  the  effect 
of  closing  all  such  places  at  the  earlier  hour.  The  Royer 
law,  passed  in  Ohio  in  1902,  divested  the  Supreme  Court 
of  that  state  of  the  larger  part  of  its  appellate  jurisdiction, 
an  effect  not  contemplated  by  the  legislators.  When  the 
consequences  of  the  act  were  understood,  for  the  purpose  of 
remedying  it  a  special  session  was  called  at  an  expense  to 
the  state  of  $50,000.  The  defects  of  the  Illinois  primary 
election  law  of  1905,  which  caused  the  state  Supreme  Court 
to  declare  it  unconstitutional,  also  necessitated  an  extra 
session  of  the  legislature. 

58.   THE  PROBLEM   OF  INTELLIGENT  LEGISLATION. 

State  legislators  and  the  voters  who  elect  them  being  what  they 
are,  how  may  the  legislative  product  be  improved.  Professor  Ernst 
Freund  suggests  two  very  simple  and  practical  expedients  which 
will  go  far  toward  solving  this  problem:  [1907], 

Given  a  legislature  of  average  ability,  fairly  representa- 
tive in  character,  not  exempt  from  political  bias  or  popular 
prejudice,  but  willing  on  the  whole  to  act  according  to  the 
best  of  its  lights,  such  a  legislature  as  we  now  have,  and 
shall  have  for  many  years  to  come;  how  can  it  be  enabled 
to  perform  its  task  most  creditably  and  most  efficiently  ? 

This  problem  has  of  course  always  engaged  the  attention 
of  legislative  bodies,  their  attention  far  more  than  that  of 
the  people  at  large,  and  it  is  important  to  inquire  why,  after 
a  hundred  years'  experience  and  experiments,  a  satisfactory 
solution  has  not  been  found,  and  why  it  is  that  only  now 


STATE  LEGISLATION  289 

the  subject  is  beginning  to  arouse  popular  attention  and 
interest.  .  .  . 

The  shortcomings  of  our  present  system  may  be  said  to 
be  lack  of  responsibility,  lack  of  expert  advice,  and  lack  of 
principle. 

1.  Responsibility. — We  know  how  much  our  jurisprudence 
has  gained  through  the  system  of  written  opinions  published 
in  reports,  through  which  the  work  of  every  judge  of  an 
appellate  court  is  subjected  to  the  scrutiny  of  the  legal 
profession.  But  how  can  the  responsibility  for  a  bad  piece  of 
legislation  be  brought  home  to  any  one? 

Any  member  of  the  legislature  may  introduce  any  bill  he 
pleases,  and  his  doing  so  does  not  even  necessarily  mean 
that  he  assumes  any  responsibility  for  its  form  or  contents. 
In  the  German  reichstag  it  requires  the  support  of  fifteen 
members  to  introduce  a  bill  that  does  not  come  from  the 
government,  and  practically  all  privately  initiated  measures 
are  backed  by  some  political  party.  It  has  been  suggested 
that  it  might  be  well  to  limit  each  member  of  a  State  legis- 
lature to  a  small  number  of  bills,  to  induce  him  to  exercise 
some  care  and  discrimination.  If  this  were  regarded  as 
trenching  too  much  upon  his  privileges,  he  might  at  least 
be  required,  as  a  condition  of  having  his  bill  considered  by 
a  committee,  to  state  at  whose  request,  at  the  instance  of 
which  interest  or  organization,  he  introduced  a  measure;  still 
better,  to  furnish  a  memorandum  of  the  purpose  of  the  bill 
and  explanation  of  its  provisions,  as  is  now  common  in 
the  national  legislature  when  a  bill  is  reported  favorably  by 
a  committee.  This  would  ensure  the  correction  of  many 
errors  and  would  tend  to  fix  responsibility.  The  lobby  as 
a  recognized  and  regulated  institution  might  be  made  to 
serve  the  same  end.  All  this  could  be  accomplished  by  rules 
of  the  legislature.  The  publication  of  bills  in  advance  of 
their  introduction  would  be  even  more  desirable.  The  require- 
ment of  previous  notice  exists  with  reference  to  special  or 
local  bills  under  constitutional  provisions  in  about  eight 
States.  In  England  the  law  requires  such  previous  notice 
19 


290  READINGS  IN  CIVIL  GOVERNMENT 

for  all  rules  of  administrative  bodies  promulgated  under 
statutory  powers.  In  Germany  the  government  publishes  all 
important  measures  before  they  are  presented  to  the  legisla- 
ture. 

Such  a  requirement  would  hardly  be  practicable  with 
reference  to  all  public  bills.  But  the  practice  might  be 
adopted  with  advantage  for  so-called  administration  measures. 
While  the  executive  cannot  initiate  legislation  directly,  he 
can  do  so  practically  through  friendly  members,  and  assume 
the  political  responsibility  therefor.  The  practice  is  not 
uncommon  now,  and  will  probably  grow  in  the  future.  It  is 
not  impossible  that  without  any  constitutional  amendment, 
the  course  of  events  may  create  a  virtual  power  of  executive 
initiation  of  legislation  similar  to  that  enjoyed  by  European 
governments. 

The  share  of  our  executive  in  legislation  at  the  final  stage 
of  the  process  is  much  larger  than  it  is  in  most  European 
States,  but  at  present  the  sense  of  responsibility  for  its 
exercise  is  limited.  While  governors  regard  it  as  their  duty 
to  veto  measures  that  are  plainly  unconstitutional  or  unwork- 
able, they  generally  yield  to  the  legislature  in  matters  of 
policy.  A  freer  exercise  of  the  veto  power  than  is  now  com- 
mon, based  upon  looseness  and  faultiness  of  provisions, 
would  however  be  tolerated  not  only  by  the  people,  but  prob- 
ably by  the  legislature  itself. 

In  those  States  in  which  the  governor  has  a  considerable 
time  after  the  adjournment  of  the  legislature  to  examine 
bills  passed  at  the  end  of  the  session  (when  the  most  impor- 
tant bills  are  usually  enacted),  such  a  function  of  censorship 
might  be  carefully  and  effectively  exercised  with  beneficial 
results. 

2.  Expert  Advice. — There  are  two  distinct  kinds  of  advice 
that  the  legislature  stands  in  need  of,  the  first  as  to  the  con- 
tent of  legislation,  the  second  as  to  its  legal  form. 

As  to  the  first,  the  theory  is  that  the  legislature  is 
acquainted  with  the  circumstances  and  needs  of  the  people, 
just  as  the  old  jury  was  presumed  to  know  of  all  open  and 


STATE  LEGISLATION  291 

public  occurrences  within  the  country.  But  as  a  matter  of 
fact,  most  of  the  information  necessary  for  intelligent  legis- 
lation cannot  be  acquired  without  special  study  or  even 
special  training.  In  the  case  of  subjects  generally  recognized 
as  technical  the  legislature  naturally  relies  upon  experts. 
Often  the  information  comes  from  interested  parties;  but 
even  if  impartial,  private  advisers  cannot  be  expected  to  have 
that  sense  of  definite  responsibility  toward  the  legislature 
which  a  permanent  official  in  England  or  Germany  feels 
toward  a  secretary  of  state. 

Where  the  subject  to  be  legislated  on  is  one  not  supposed 
to  be  technical,  the  legislature  commonly  acts  upon  the 
vaguest  impressions,  reflecting  popular  beliefs  and  prejudices ; 
and  it  must  be  confessed  that  with  regard  to  many  of  the 
most  important  social  and  economic  conditions,  no  better 
information  has  in  the  past  been  available. 

As  regards  the  correct  legal  form  of  expressing  the  subject- 
matter  of  legislative  proposals,  it  is  recognized  that  this  is  a 
task  requiring  technical  learning.  Giving  due  recognition 
to  the  large  amount  of  painstaking  legal  work  embodied  in 
any  volume  of  our  session  laws,  and  without  magnifying  the 
blunders  that  occur  too  frequently,  it  is  obvious  that  a 
systematic  plan  of  dealing  with  this  aspect  of  legislation 
would  bring  a  much  needed  improvement. 

The  technical  shortcomings  of  our  statutes  are  chiefly  due 
to  the  fact  that  they  come  from  so  many  hands  working 
without  supervision  and  without  a  concerted  plan.  Each 
statute  is  apt  to  create  to  some  extent  an  administrative 
machinery  of  its  own,  to  have  its  own  peculiar  provisions  for 
sanction  and  enforcement,  to  frame  anew  rules  and  principles 
applicable  to  already  existing  acts  in  pari  materia.  The 
multiplicity  of  separate  provisions  for  separate  statutes  pro- 
duces disharmony  and  confusion,  and  unnecessarily  encum- 
bers our  law.  What  we  need  is  something  in  the  nature  of 
the  English  clauses  acts,  or  the  great  organic  administrative 
legislation  of  Prussia  and  other  German  states,  extended  to 
the  whole  of  our  police  legislation,  so  far  as  such  work  has 


292  READINGS  IN  CIVIL  GOVERNMENT 

not  already  been  done  by  codifying  acts  and  statutory 
revisions. 

A  risk  peculiar  to  our  legislation  is  the  number  and  uncer- 
tainty of  constitutional  requirements.  With  adequate  knowl- 
edge and  forethought  many  obvious  and  needless  errors 
might  be  avoided.  In  many  cases,  however,  it  is  necessary  to 
try  an  experiment  with  full  consciousness  of  the  constitutional 
risk,  and  await  the  decision  of  the  supreme  court.  The  judg- 
ment of  the  legislature,  as  to  what  the  Constitution  permits, 
weighs  next  to  nothing  with  the  courts,  judicial  professions 
to  the  contrary  notwithstanding.  And  this  is  largely  due  to 
the  fact  that  the  courts  know  that  the  legislative  decision  doea 
not  represent  thoroughly  considered  professional  opinion. 

The  constitution  of  the  legislatures  is  unfavorable  to  a 
high  quality  of  legislative  work.  It  has  not  even  the  benefit 
of  permanent  organization;  after  brief  and  intermittent 
periods  of  activity  the  legislative  offices  are  closed,  and  the 
papers  and  records  are  turned  over  to  the  secretary  of  state. 
In  the  absence  of  trained  and  permanent  legislative  officials, 
the  continuity  of  legislative  experience  and  tradition  is  at 
present  only  maintained  by  the  practice  of  reappointing  the 
same  members  to  the  same  committees,  session  after  session, 
provided  they  re-enter  the  legislature. 

The  lack  of  permanent  organization  is  the  very  negation 
of  the  one  thing  indispensable  to  careful  legislation :  the  pro- 
fessional attitude  of  mind.  This  means  training  for  the  work, 
devotion  to  it,  and  a  reputation  at  stake  in  its  proper  execu- 
tion, and  without  it  high  quality  of  workmanship  is  as  un- 
likely in  legislation  as  in  any  other  work.  It  would  of  course 
be  idle  to  expect  that  habit  of  mind  of  a  political  assembly; 
expert  assistance  to  the  legislature  is  therefore  essential  to  any 
genuine  improvement  of  legislative  methods. 

The  method  in  favor  at  present  for  providing  such  assist- 
ance seems  to  be  the  creation  of  legislative  reference 
bureaus.  This  is  due  to  the  excellent  work  done  in  Wisconsin. 
In  the  long  run  probably  a  division  of  functions  will  be 


STATE  LEGISLATION  293 

necessary  by  which  the  work  of  the  reference  bureau  will  be 
devoted  to  the  task  of  gathering  data  of  a  bibliographical 
nature,  while  the  work  of  draftsmanship  will  be  assigned  to 
some  official  in  close  contact  with  the  legislature. 

The  collection  of  statutes,  of  bills,  and  of  reference  to  cur- 
rent literature  is  already  a  prominent  part  of  the  work  of 
the  reference  bureau,  and  when  once  such  bureaus  shall  have 
been  established  in  a  number  of  States  or  the  existing  State 
libraries  can  be  interested  in  the  subject,  they  should  be 
induced  to  unite  in  the  establishment  of  some  central  bureau 
which  should  issue  informal  bulletins  giving  full  information 
of  current  legislative  movements  in  the  several  States. 

The  work  should  further  include  the  collecting  and  digest- 
ing of  papers  of  legislative  interest,  that  may  be  filed  in  the 
offices  of  the  clerks  of  the  legislature  or  of  the  secretaries  of 
state.  If  funds  can  be  made  available  for  the  purpose, 
every  State  should  see  to  it  that  all  executive  documents 
bearing  on  legislation,  especially  veto  messages  or  statements, 
that  have  been  printed  or  preserved,  should  be  published  and 
the  entire  body  of  session  laws  indexed. 

It  would  further  be  well  to  digest  and  index  the  reports 
of  State  and  city  administrative  officers  and  boards,  which 
often  contain  most  valuable  points  regarding  the  operation 
and  enforcement  of  statutes. 

The  collection  of  data  other  than  bibliographical  which  are 
important  for  the  information  of  the  legislature,  would 
fall  beyond  the  province  of  the  reference  bureau.  Nothing 
would  be  more  important  than  the  collection  of  judicial  statis- 
tics, both  civil  and  criminal,  which  so  far  has  been  entirely 
neglected  in  this  country.  For  work  of  this  kind,  we  must 
rely  mainly  upon  the  initiative  and  the  example  of  the  census 
bureau  at  Washington. 

As  for  the  work  of  draftsmanship,  provision  has  been  made 
in  a  tentative  manner  in  several  States  for  expert  assistance 
to  the  legislature.  In  South  Carolina  the  attorney-general  is 
the  adviser  of  the  legislature,  and  he  may  require  the  assist- 


294  READINGS  IN  CIVIL  GOVERNMENT 

ance  of  the  State  solicitors,  for  drafting  bills.  The  law  offi- 
cers of  cities  are  likewise  very  commonly  consulted  or  em- 
ployed in  the  drafting  of  ordinances. 

Law  officers,  however,  hold  their  positions  by  political  tenure 
for  definite  terms,  and  the  same  is  generally  true  of  their 
assistants.  They  are  not  therefore  likely  to  acquire  a  suffi- 
ciently large  experience  in  the  technique  of  legislation,  to  de- 
velop anything  like  the  office  of  the  parliamentary  counsel 
of  the  treasury  in  England. 

An  office  or  position  within  the  legislature  itself  would 
have  the  advantage  of  closest  contact  with  the  members,  and 
it  would  therefore  probably  be  most  widely  used.  A  commit- 
tee of  the  American  Bar  Association  in  1886  recommended 
the  appointment  by  the  presiding  officers  of  the  two  houses 
of  a  joint  standing  committee  for  the  revision  of  bills,  with 
power  to  employ  counsel.  In  New  York  the  two  presiding 
officers  may  appoint  three  persons  to  draft  bills  at  the  request 
of  the  members  or  of  committees.  In  Connecticut  there  is 
a  clerk  of  bills  to  whom  every  bill  favorably  acted  upon  by 
a  committee,  before  being  reported  to  the  legislature,  must  be 
submitted  for  examination.  This  is  the  only  statutory  pro- 
vision for  compulsory  reference  in  this  country.  The  value 
of  a  statutory  requirement  is  not  to  be  underestimated,  even 
though  it  be  not  directly  enforceable.  Much  more  impor- 
tant, however,  is  the  tenure  and  status  of  the  clerk  or  actual 
draftsman  by  whatever  name  he  goes.  The  position  should 
not  be  practically  limited  to  one  session  of  the  legislature,  as 
it  is  in  Connecticut  where  the  clerk  of  bills  expects  to  advance 
at  the  next  session  to  the  place  of  engrossing  clerk. 

The  national  house  of  representatives  has  the  benefit  of 
the  services  of  two  clerks  whose  positions,  as  at  present  filled, 
probably  come  nearer  to  representing  the  professional  element 
in  the  legislative  part  of  the  government  than  anything  else 
in  this  country;  the  clerk  of  the  speaker's  table,  and  the 
clerk  of  the  committee  on  appropriations,  both  practically 
permanent  and  well  paid  officials.  A  clerk  of  the  committee 
on  judiciary  or  on  enrollment  or  on  bills  in  the  third  read- 


STATE  LEGISLATION  295 

ing  (as  in  Massachusetts),  who  would  work  himself  by 
faithful  and  intelligent  service  into  the  confidence  of  the  house 
might  develop  into  a  legislative  expert  and  something  like  a 
permanent  parliamentary  counsel. 

Practical  permanence  of  tenure  would  be  indispensable, 
and  if  the  services  of  competent  men  are  to  be  retained,  that 
would  involve  adequate  compensation.  How  the  office  of  par- 
liamentary counsel  is  regarded  in  England  appears  from  the 
fact  that  the  first  incumbent  received  a  peerage  on  his 
retirement.  No  permanent  improvement  of  the  quality  of 
legislation  is  possible  without  a  staff  of  experts  of  high  pro- 
fessional standing  in  that  very  branch  of  work.  Their 
experience  and  authority  would  in  course  of  time  raise 
greatly,  not  merely  the  popular,  but,  what  is  just  as  impor- 
tant, the  judicial  estimate  of  the  work  of  the  legislature, 
and  questions  of  construction  and  constitutionality  would  be 
less  speculative  than  they  are  at  present. 

59.    THE  INITIATIVE   AND   REFERENDUM. 

(a)  One  of  the  agencies  by  which  corrupt  and  inefficient  State 
legislation  may  be  checked  and  corrected  is  for  the  people  to  reserve 
the  direct  legislative  power  to  themselves.  The  process  by  which 
this  is  accomplished,  known  as  the  initiative  and  referendum,  has 
lately  found  its  way  into  the  constitutions  of  a  considerable  number 
of  States.  Dr.  W.  F.  Dodd  has  thus  summarized  this  development 
toward  direct  legislation  up  to  the  year  1909: 

The  first  constitutional  provision  for  the  initiative  and 
referendum  with  reference  to  state  laws  was  that  adopted  by 
South  Dakota  in  1898;  Utah  followed  in  1900  with  a  con- 
stitutional amendment  intended  to  obtain  the  initiative  and 
referendum  upon  state  laws,  but  the  Utah  amendment  was  not 
self-executing,  and  the  legislature  of  that  state  has  never 
enacted  legislation  to  carry  its  provisions  into  effect.  Since 
1900  the  movement  for  the  initiative  and  referendum  has 
grown  rapidly.  Oregon  by  its  amendments  of  1902  and  1906 
has  provided  for  the  enactment  of  laws  and  constitutional 
amendments  by  the  people  without  the  participation  of  the 


296  HEADINGS  IN  CIVIL  GOVERNMENT 

legislature,  and  has  also  made  provision  for  a  compulsory 
referendum  upon  laws  or  upon  parts  of  any  laws  enacted  by 
the  legislature.  Nevada  in  1904  established  a  compulsory 
referendum  upon  state  laws,  but  did  not  adopt  the  initiative. 
Montana  in  1906  adopted  the  initiative  and  referendum  for 
state  laws.  Oklahoma  in  1907  adopted  the  initiative  and 
referendum  for  state  laws  and  constitutional  amendments, 
applying  the  referendum  also  with  reference  to  sections, 
items,  or  parts  of  any  act  of  the  legislature.  The  greatest 
gains  for  the  initiative  and  referendum  have  been  made  in 
1908.  During  this  year  Maine  has  adopted  the  initiative  and 
referendum  for  laws;  Michigan  has  adopted  the  initiative  for 
constitutional  amendments  and  the  referendum  upon  state 
laws,  the  use  of  the  latter,  however,  not  being  compulsory 
upon  popular  petition,  it  being  left  entirely  to  the  legislative 
discretion  as  to  whether  a  law  shall  be  submitted  to  the  people 
for  approval.  Missouri  has  adopted  the  initiative  and  refer- 
endum with  reference  both  to  laws  and  to  constitutional 
amendments.  Until  recently  this  movement  has  been  confined 
to  the  states  of  the  further  west,  but  the  most  significant  thing 
in  the  development  of  the  present  year  has  been  the  adoption 
of  these  more  popular  forms  of  government  in  Maine,  Michi- 
gan and  Missouri. 

(b)  Of  all  the  States  that  have  attempted  direct  legislation,  Ore- 
gon has  so  far  met  with  the  most  favorable  results.  In  June,  1902, 
the  people  of  that  State  adopted  the  following  amendment  to  Arti- 
cle IV  of  the  constitution  by  a  vote  of  62,024  for,  to  5,668  against: 

Section  1.  The  legislative  authority  of  the  state  shall  be 
vested  in  a  legislative  assembly,  consisting  of  a  senate  and 
house  of  representatives,  but  the  people  reserve  to  themselves 
power  to  propose  laws  and  amendments  to  the  constitution 
and  to  enact  or  to  reject  the  same  at  the  polls,  independent 
of  the  legislative  assembly,  and  also  reserve  power  at  their 
own  option  to  approve  or  reject  at  the  polls  any  act  of  the 
legislative  assembly.  The  first  power  reserved  by  the  people 
is  the  initiative,  and  not  more  than  eight  per  cent,  of  the 


STATE  LEGISLATION  297 

legal  voters  shall  be  required  to  propose  any  measure  by 
such  petition,  and  every  such  petition  shall  include  the  full 
text  of  the  measure  so  proposed.  Initiative  petitions  shall 
be  filed  with  the  secretary  of  state  not  less  than  four  monthsi 
before  the  election  at  which  they  are  to  be  voted  upon.  The 
second  power  is  the  referendum,  and  it  may  be  ordered 
(except  as  to  laws  necessary  for  the  immediate  preservation 
of  the  public  peace,  health  or  safety),  either  by  the  petition 
signed  by  five  per  cent,  of  the  legal  voters,  or  by  the  legis- 
lative assembly,  as  other  bills  are  enacted.  Keferendum  peti- 
tions shall  be  filed  with  the  secretary  of  state  not  more  than 
ninety  days  after  the  final  adjournment  of  the  session  of  the 
legislative  assembly  which  passed  the  bill  on  which  the 
referendum  is  demanded.  The  veto  power  of  the  governor 
shall  not  extend  to  measures  referred  to  the  people.  All 
elections  on  measures  referred  to  the  people  shall  be  had  at 
the  biennial  regular  general  election,  except  when  the  legisla- 
tive assembly  shall  order  a  special  election.  Any  measure 
referred  to  the  people  shall  take  effect  and  become  the  law 
when  it  is  approved  by  a  majority  of  the  votes  cast  therein, 
and  not  otherwise.  The  style  of  all  bills  shall  be:  "Be  it 
enacted  by  the  people  of  the  State  of  Oregon. "  This  section 
shall  not  be  construed  to  deprive  any  member  of  the  legis- 
lative assembly  of  the  right  to  introduce  any  measure.  The 
whole  number  of  votes  cast  for  justice  of  the  supreme  court 
at  the  regular  election  last  preceding  the  filing  of  any  petition 
for  the  initiative  or  for  the  referendum  shall  be  the  basis  on 
which  the  number  of  legal  voters  necessary  to  sign  such 
petition  shall  be  counted.  Petitions  and  orders  for  the  initia- 
tive and  for  the  referendum  shall  be  filed  with  the  secretary 
of  state,  and  in  submitting  the  same  to  the  people  he,  and 
all  other  officers,  shall  be  guided  by  the  general  laws  and  the 
act  submitting  this  amendment,  until  legislation  shall  be  espe- 
cially provided  therefor. 

Sec.  la.  The  referendum  may  be  demanded  by  the  people 
against  one  or  more  items,  sections  or  parts  of  any  act  of  the 
legislative  assembly,  in  the  same  manner  in  which  such  power 


298  READINGS  IN  CIVIL  GOVERNMENT 

may  be  exercised  against  a  complete  act.  The  filing  of  a  ref- 
erendum petition  against  one  or  more  items,  sections  or  parts 
of  an  act  shall  not  delay  the  remainder  of  that  act  from  be- 
coming operative.  The  initiative  and  referendum  powers 
reserved  to  the  people  by  this  constitution  are  hereby  further 
reserved  to  all  local,  special  and  municipal  legislation  of  every 
character,  in  and  for  their  respective  municipalities  and  dis- 
tricts. The  manner  of  exercising  said  powers  shall  be  pre- 
scribed by  general  laws,  except  that  cities  and  towns  may 
provide  for  the  manner  of  exercising  the  initiative  and  refer- 
endum powers  as  to  their  municipal  legislation.  Not  more 
than  ten  per  cent,  of  the  legal  voters  may  be  required  to  order 
the  referendum  nor  more  than  fifteen  per  cent,  to  propose 
any  measure,  by  the  initiative,  in  any  city  or  town. 

(c)  The  practical  result  of  six  years'  experience  with  the  initia- 
tive and  referendum  in  Oregon  is  thus  stated  by  Hon.  U.  S.  U'Reu, 
one  of  the  leaders  of  the  reform  movement  in  that  State : 

The  every-day  use  of  a  new  piece  of  machinery  under  work- 
ing conditions  is  the  best  test  of  its  value.  Therefore  I  shall 
mention  briefly  some  results  of  five  years'  use  of  the  initiative 
and  referendum  in  Oregon. 

The  whole  number  of  electors  voting  at  general  elections 
since  1902  varies  from  about  93,000  to  97,000.  The  number 
voting  on  measures  is  from  67  to  89  per  cent,  of  the  highest 
number  voting  for  officers.  The  smallest  majority  by  which 
any  measure  has  been  approved  was  3,118  and  the  largest 
was  64,512.  The  smallest  majority  by  which  any  measure 
has  been  rejected  was  9,747  and  the  largest  was  13,000. 
Woman  suffrage  and  the  local  option  law  received  the  highest 
percentages  of  votes,  showing  that  men  do  not  vote  on  ques- 
tions they  do  not  understand.  Very  few  men  confess  igno- 
rance on  either  of  these  questions. 

The  legislature  of  1903  appropriated  money  to  build  a 
portage  railroad  on  the  Columbia  River  to  extend  the  water 
transportation  service.  Railroad  men  circulated  a  referen- 
dum petition  against  the  bill,  whereupon  the  Portland  cham- 


STATE  LEGISLATION  299 

ber  of  commerce  resolved  that  if  the  petition  was  filed  it 
would  propose  a  maximum  railroad  rate  bill  by  initiative  pe- 
tition. The  railroad's  referendum  petition  was  not  filed. 

General  Election,  1904.  A  primary  nominating  election  law 
was  proposed  by  initiative  petition  and  enacted  by  the  people. 
This  law  killed  the  political  party  bosses  and  destroyed  their 
machines,  both  State  and  municipal,  from  constable  to  United 
States  senator.  Under  its  provisions  the  people  selected  two 
United  States  senators  at  the  June  election  of  1906,  and  their 
choice  was  almost  unanimously  ratified  by  the  legislature  in 
twenty  minutes ;  the  usual  time  under  the  old  plan  was  forty 
days.  There  was  no  hint  or  charge  of  bribery,  corruption  or 
undue  influence  in  any  form. 

In  June,  1904,  a  local  option  liquor  law  was  proposed  by 
initiative  petition  and  enacted  by  the  people.  Under  this 
law  eight  counties  and  many  precincts  in  other  counties  have 
voted  "dry."  The  liquor  dealers  made  a  savage  and  costly 
campaign  against  this  bill;  they  tried  to  amend  it  out  of  ex- 
istence in  the  legislature  of  1905,  and  again  by  initiative  peti- 
tion before  the  people  in  1906,  but  the  last  defeat  was  by  three 
times  the  first  majority.  Most  of  the  university  and  college 
counties  and  towns  are  "dry." 

The  legislature  of  1905  was  controlled  in  many  things  by 
a  combination  of  the  representatives  and  senators  from  the 
six  counties  in  which  are  located  the  State  university,  agri- 
cultural college  and  four  normal  schools. 

Three  of  the  latter  were  created  as  a  part  of  legislative 
bargains  and  log-rolling  for  United  States  senators  or  other 
equally  useless  purposes.  There  was  and  is  much  dissatisfac- 
tion with  them  on  that  account.  They  put  their  appropria- 
tions in  the  general  appropriation  bill  for  the  maintenance  of 
the  State  government,  contrary  to  the  constitution,  but  in 
accordance  with  the  custom  of  many  years,  so  that  the  gov- 
ernor would  not  veto  it.  The  log-rollers  attempted  to  put 
their  appropriations  beyond  the  people  by  attaching  an  emer- 
gency clause,  but  the  governor  told  them  he  would  veto  the 
bill  if  they  passed  it  in  that  form;  for  that  reason  only  they 


300  READINGS  IN  CIVIL  GOVERNMENT 

abandoned  the  emergency  clause,  leaving  the  whole  bill  sub- 
ject to  referendum  petition.  A  referendum  petition  was 
filed,  but  thereafter  neglected.  No  further  contest  was  made 
against  the  appropriation  bill  and  it  was  approved  at  the  gen- 
eral election  in  1906.  But  it  stopped  the  practice  of  log- 
rolling many  appropriations  into  one  bill.  The  legislature 
of  1907  obeyed  the  constitution  in  that  respect. 

General  Election,  1906.  The  people  approved  four  amend- 
ments to  the  constitution  proposed  by  initiative  petitions;  ex- 
tending the  reservation  of  the  initiative  and  referendum 
powers  to  all  local,  special  and  municipal  legislation;  refer- 
endum against  items,  parts  and  sections  of  any  bill ;  granting 
home  rule  to  cities  and  towns  in  all  their  municipal  affairs, 
free  from  interference  by  the  legislature  and  limited  only 
by  the  constitution  and  criminal  laws  of  the  State;  allowing 
one  legislature  to  propose  amendments  to  the  constitution 
(the  former  provision  required  the  proposal  by  two  consecu- 
tive legislatures)  and  requiring  the  governor  to  decide  and 
proclaim  whether  an  amendment  is  adopted,  following  the 
Maine  and  Maryland  constitutions  in  that  respect;  granting 
greater  legislative  power  over  the  State  printing  and  com- 
pensation therefor;  enacted  two  corporation  tax  laws  and  an 
anti-pass  law,  but  the  latter  was  void  because  the  enacting 
clause  was  forgotten. 

Proposed  by  Initiative  Petition  and  Rejected*  A  constitu- 
tional amendment  for  woman  suffrage ;  a  bill  to  sell  the  State 
a  toll  road  for  $24,000  on  which  the  promoters  were  making  a 
profit  of  $16,000;  a  bill  proposed  by  the  liquor  dealers  to 
amend  the  local  option  law. 

These  measures  were  prepared  by  six  different  organiza- 
tions ;  the  State  Grange  had  two,  The  People 's  Power  League 
five,  and  the  others  one  each. 

In  1904,  Portland  granted  a  franchise  to  a  new  telephone 
company  on  municipal  initiative  petition.  The  city  council 
had  refused  to  grant  it,  though  better  terms  were  offered  the 
city  than  ever  before. 


STATE  LEGISLATION  301 

In  1907,  the  people  of  Portland,  at  their  municipal  election, 
voted  on  nineteen  charter  amendments  and  ordinances  under 
their  initiative  and  referendum  powers.  Most  of  the  meas- 
ures were  proposed  by  the  council.  A  number  of  proposals 
for  franchise  grants  have  been  abandoned  since  1905  because 
of  threats  of  the  referendum.  Many  cities  have  amended  or 
rejected  proposed  amendments  to  their  charters,  some  of- 
fered by  initiative  petition  and  some  by  the  city  councils. 

The  legislature  of  1907,  under  its  new  power,  submitted 
four  amendments  to  the  constitution;  one  to  change  the  gen- 
eral election  from  June  to  the  date  of  November  congres- 
sional elections;  one  authorizing  legislation  for  the  improve- 
ment of  the  judicial  system;  one  to  increase  the  pay  of 
legislators  from  $120  to  $400  for  a  regular  session  and  one 
to  allow  the  people  to  establish  State  institutions  at  other 
places  than  the  State  capital. 

Four  referendum  petitions  have  been  filed  against  acts  of 
the  legislature;  one  against  a  bill  appropriating  $100,000  to 
build  armories;  one  against  a  bill  denying  the  right  of  emi- 
nent domain  to  railroads  which  do  not  agree  to  carry  State 
officers  free  of  charge;  one  against  a  bill  which  would  result 
in  increasing  the  profits  of  the  sheriff's  office  in  counties  of 
50,000  population  and  over ;  one  against  a  standing  appropria- 
tion of  $125,000  for  the  State  university.  As  to  the  latter,  it 
is  a  positive  expression  of  what  used  to  be  the  very  general 
feeling  that  those  wanting  the  higher  education  should  pay 
for  it,  and  that  the  State  does  its  full  duty  when  it  teaches 
the  "  three  Rs."  The  appropriation  is  not  the  result  of  any- 
thing like  previous  log-rolling  combinations,  and  is  very  mod- 
erate if  the  State  is  to  maintain  a  university  at  all.  It  is 
to  be  hoped  that  this  appropriation  will  be  approved  by  a 
great  majority  of  the  voters,  and  a  vigorous  educational  cam- 
paign is  to  be  made  for  it. 

Initiative  petitions  are  in  preparation  for  constitutional 
amendments  as  follows:  woman  suffrage;  exempting  from 
taxation  factories,  machinery,  and  residence  buildings,  but  not 


302  READINGS  IN  CIVIL  GOVERNMENT 

land  or  lots  on  which  they  are  situated;  authorizing  enact- 
ment of  laws  for  proportional  representation  and  majority 
elections ;  for  the  recall  against  public  officers. 

Initiative  petitions  for  statute  laws:  a  bill  for  a  salmon 
fisheries  law;  a  bill  instructing  the  legislature  to  elect  for 
United  States  senators  those  candidates  selected  by  the  peo- 
ple at  their  general  elections ;  a  corrupt  practices  law  modeled 
on  the  British  acts  of  1883  and  1895,  but  also  providing  for 
the  circulation  of  campaign  literature  partly  at  the  public 
expense. 

It  is  probable  that  there  will  be  fifteen  important  measures 
on  the  ballot  for  the  voter's  approval  or  rejection  next  June. 

Summary. 

The  people  have  abolished  party  bosses  and  political  ma- 
chines; made  the  liquor  question  and  prohibition  a  purely 
local  issue;  increased  the  legislature's  respect  for  the  con- 
stitution; greatly  injured,  but  not  yet  destroyed,  the  legis- 
lative log-rolling  industry;  taken  municipal  affairs  out  of  the 
legislature;  taxed  some  corporations  that  were  dodging;  in 
the  matter  of  amendments  to  the  constitution,  greatly  in- 
creased the  power  and  responsibility  of  the  legislature  and 
governor;  under  the  efficient  leadership  of  prominent  teach- 
ers of  the  State,  the  high  schools  are  debating  the  nominating 
elections  law,  proportional  representation,  people's  direct  elec- 
tion of  United  States  senators  and  other  live  problems  in 
representative  government ;  for  the  first  time  in  American  his- 
tory the  school  teacher  is  taking  his  rightful  place  as  an 
educator  in  the  science  of  government,  instead  of  being  a  vic- 
tim in  the  game  of  politics;  the  high  schools  of  Washington 
are  debating  whether  their  State  should  adopt  the  initiative 
and  referendum  provisions  of  the  Oregon  constitution;  the 
voters  of  the  State  and  cities  are  taking  an  interest  in  their 
government  far  greater  than  ever  before,  and  growing  rapidly 
to  the  full  measure  of  their  power  and  responsibility. 

The  people  of  Oregon  have  learned  that  to  get  the  best  re- 


STATE  LEGISLATION  303 

suits  they  must  do  their  own  governing  every  day.  They 
know  that  government  is  human,  not  mechanical;  that  the 
election  of  good  men  for  officers  is  not  like  winding  a  clock, 
which  may  be  safely  left  to  do  its  work,  needing  only  to  be 
wound  again  at  set  times.  The  voters  of  Oregon  realize  that 
government  is  rightly  named  the  Ship  of  State ;  the  governing 
is  like  sailing  a  ship  in  this,  that  to  steer  a  straight  course  they 
must  hold  the  helm  and  control  their  officers  all  the  time. 

There  is  fear  of  the  initiative  now  among  some  of  the  men 
who  helped  to  establish  the  system  in  Oregon,  because  the  peo- 
ple could  abuse  the  power.  Officers  have  been  known  to 
abuse  power.  They  say,  What  may  the  people  not  do?  But 
fear  is  the  only  sign  of  such  a  danger.  Capitalized  vice,  po- 
litical grafting,  legislative  log-rolling  and  corporate  tax  dodg- 
ing, thus  far,  are  the  only  industries  in  Oregon  to  confess  in- 
jury from  the  people's  use  of  the  initiative  and  referendum 
powers. 

It  is  probable  that  some  day  our  initiative  plan  will  be 
improved  by  allowing  the  legislature  opportunity  to  offer  a 
competing  measure,  both  to  be  submitted  to  the  people  at  the 
same  election.  Hon.  Geo.  H.  Shibley  of  Washington,  D.  C., 
made  this  suggestion  last  year.  But  as  to  repealing  either 
the  initiative  and  referendum  powers,  there  is  only  one  opin- 
ion in  Oregon. 

60.   PRIMARY  VS    REPRESENTATIVE  GOVERNMENT. 

What  is  the  significance  of  this  widespread  dissatisfaction  with 
our  legislative  bodies  and  the  growing  movement  toward  a  greater 
participation  by  the  people  themselves  in  the  details  of  law-making? 
Does  it  indicate  a  general  breakdown  of  representative  government 
and  a  return  to  the  ancient  principle  of  primary  democracy?  In 
the  following  selection  Professor  J.  W.  Garner  discusses  the  ques- 
tion as  to  how  far  the  people  may  safely  participate  directly  in 
government:  [1907]. 

In  determining  the  extent  to  which  direct  participation  of 
the  people  in  government  is  practicable  or  desirable,  we  must 
take  into  account  their  general  intelligence,  the  character  of 


304  HEADINGS  IN  CIVIL  GOVERNMENT 

the  service  which  they  are  called  upon  to  perform,  and  the 
resulting  benefits  considered  from  the  standpoint  both  of  ad- 
ministrative efficiency  and  social  uplift.  If  the  service  con- 
sists merely  in  the  selection  of  those  public  officials  whose  of- 
fices are  political  rather  than  administrative  or  judicial  in 
character,  there  is  a  general  concurrence  of  opinion  that  a 
wide  popular  participation  may  be  safely  permitted  if  the 
electorate  possesses  a  fair  degree  of  intelligence  and  virtue. 
This  is  so  because  no  special  knowledge  derived  from  study, 
experience  or  discussion  is  required  to  perform  the  service 
intelligently  and  the  resulting  benefits  to  the  electorate  both 
through  education  and  stimulation  of  interest  in  public  af- 
fairs are  of  great  importance.  More  important  still  such 
participation  is  necessary  to  preserve  the  popular  character 
of  the  government  and  prevent  it  from  becoming  a  bureau- 
cracy. .  .  . 

If  the  service  of  the  elector  consists  in  passing  judgment 
upon  the  merits  of  untried  legislative  or  administrative 
projects  (as  opposed  to  concrete  results  already  attained),  a 
higher  degree  of  intelligence  is,  of  course,  required,  in  the 
absence  of  which  there  must  be  a  loss  of  efficiency,  though 
the  moral  and  educational  benefits  to  the  electorate  on  account 
of  being  permitted  to  share  in  the  service  may  outweigh  the 
disadvantage.  .  .  . 

But  manifestly  there  is  a  point  beyond  which  popular  gov- 
ernment produces  an  inefficiency  which  is  out  of  all  propor- 
tion to  the  resulting  educational  advantages  to  the  electorate. 
When  this  point  is  reached  the  primary  system  must  yield  to 
the  representative  system.  An  electorate  of  average  intelli- 
gence may  very  properly  be  given  a  veto  upon  legislative 
projects  of  a  simple  and  purely  local  character,  especially  if 
such  propositions  involve  the  imposition  of  extraordhiMry 
pecuniary  burdens,  but  it  is  quite  another  thing  to  permit 
every  dissatisfied  class  in  the  state  to  formulate  legislative 
projects  which  are  complex  in  character  and  general  in  scope, 
compel  a  referendum  on  their  schemes  and  have  them  put  into 
force  upon  an  affirmative  vote  of  an  electorate  a  large  propor- 


STATE  LEGISLATION  305 

tion  of  whom,  from  want  of  special  knowledge  are  "incapable 
of  expressing  an  intelligent  opinion  upon  their  merits. 

Government  by  the  masses  in  their  primary  capacity  rests 
on  the  theory  that  all  men  are  specialists  in  a  great  number 
of  fields,  that  the  mass  of  ignorant  voters,  amounting  to  tens 
of  thousands  in  the  large  cities,  many  of  them  foreigners  re- 
cently naturalized  and  having  little  or  no  permanent  interest 
in  the  community,  are  as  capable  of  pronouncing  judgment 
upon  untried  legislative  projects  or  administrative  policies  as 
are  trained  and  experienced  legislators  and  administrators, 
and  that  they  can  not  be  swayed  by  prejudices  or  misled  by 
demagogues.  The  late  Mr.  Justice  Fitz  James  Stephen  ex- 
pressed a  truth  which  history  has  abundantly  confirmed  when 
he  declared  that 

government  really  done  well  requires  an  immense  amount  of  special 
knowledge  and  the  steady,  restrained,  and  calm  exertion  of  a  great 
variety  of  the  highest  talents  which  are  to  be  found. 

A  recent  illustration  of  the  futility  of  submitting  to  the 
people  measures  of  an  administrative  character  which  require 
special  knowledge  such  as  is  possessed  by  only  a  compara- 
tively small  portion  of  the  population  was  afforded  by  the 
referendum  in  Illinois  (November,  1906),  on  a  proposition 
to  empower  the  commissioners  of  the  Illinois  and  Michigan 
Canal  to  sell  certain  lands  belonging  to  the  canal  which  were 
described  in  a  certain  joint  resolution  of  a  previous  session 
of  the  legislature,  the  lands  to  be  sold  in  accordance  with  the 
conditions  set  forth  in  the  said  resolution.  The  voters  were 
left  to  find  out  as  best  they  could  where  the  lands  were,  why 
it  was  desired  to  sell  them  and  what  were  the  conditions  of 
sale  referred  to  in  the  joint  resolution.  Not  one  elector  in 
ten  was  qualified  to  cast  an  intelligent  vote  on  the  proposition 
and  it  was  too  much  to  expect  that  they  would  go  to  the 
trouble  of  informing  themselves  of  the  merits  of  the  measure 
through  research  or  correspondence.  They  did  the  only  nat- 
ural thing  to  be  done  under  the  circumstances,  namely,  ab- 
stain from  voting  on  the  proposition  and  accordingly,  it  was 
ao 


306  READINGS  IN  CIVIL  GOVERNMENT 

lost  by  default,  though  a  large  majority  of  those  who  voted 
on  the  measure  voted  in  the  affirmative.  It  is  difficult -to  see 
what  is  to  be  gained  either  by  way  of  popular  education,  pub- 
lic control,  or  administrative  efficiency  through  the  employ- 
ment of  the  referendum  on  quasi-technical  questions  of  this 
character  when  the  judgment  of  the  voter  is  limited  to  a  sin- 
gle yes  or  no  and  when  there  are  no  practical  means  of  esti- 
mating the  merits  of  the  measures  submitted.  A  somewhat 
careful  examination  of  the  results  of  the  workings  of  the 
referendum  both  in  Switzerland  and  in  this  country,  shows 
that  the  vote  cast  on  referendal  propositions  has  been  with 
rare  exceptions,  distressingly  small,  thus  raising  the  question 
whether  after  all  the  masses  of  the  people  are  really  interested 
in  the  demand  for  a  wider  extension  of  the  referendum  and 
whether,  if  granted,  they  would  avail  themselves  generally 
of  the  privilege.  The  important  constitutional  amendment 
of  1891  establishing  the  initiative  in  Switzerland  was  adopted 
by  a  referendum  in  which  less  than  half  of  the  registered  vot- 
ers participated,  and  it  not  infrequently  happens  that  on 
propositions  submitted  by  the  cantonal  legislatures,  the  vote 
in  some  communes  falls  as  low  as  15  and  even  10  per  cent,  of 
the  total.  In  the  canton  of  Berne,  of  sixty-eight  statutes 
which  owe  their  existence  to  direct  legislation,  only  eight 
were  approved  by  a  majority  of  the  voters.  In  Zurich  as 
many  as  30  per  cent,  of  the  ballots  cast  are  often  blank  and 
most  of  the  laws  enacted  through  the  referendum  so  far  have 
been  carried  by  a  minority  of  the  voters. 

It  is  ridiculous,  says  Deploige,  a  native  student  of  the 
referendum  in  Switzerland,  to  talk  of  legislation  by  the  peo- 
ple when  more  than  half  of  the  citizens  refuse  to  exercise 
their  legislative  rights. 

American  experience  with  the  referendum  has  in  general 
shown  the  same  indifference  and  apathy.  Only  in  exceptional 
cases  have  constitutional  or  legislative  proposals  called  out 
a  vote  equal  to  50  per  cent,  of  the  total  and  in  most  cases 
it  has  been  less.  Owing  to  the  common  requirement  that 
proposed  constitutional  amendments  shall,  in  order  to  be 


STATE  LEGISLATION  307 

valid,  receive  a  majority  of  the  votes  cast  at  the  election  at 
which 'the  amendment  is  submitted,  it  has  proved  impossible 
to  bring  about  needed  constitutional  changes  in  many  of  the 
States.  To  mention  a  few  examples,  by  way  of  illustration, 
an  important  amendment  to  the  constitution  of  Illinois,  the 
need  of  which  scarcely  any  one  denied,  was  defeated  in  1896 
because  only  about  one-fifth  of  those  who  voted  for  presi- 
dential electors  cast  a  vote  on  the  question  of  amendment. 
In  November,  1906,  a  proposed  amendment  was  submitted 
to  the  voters  of  Kansas  and  only  60,000  votes  were  cast  on 
the  proposition  though  more  than  300,000  votes  were  polled 
by  the  head  of  the  State  ticket.  Practically  all  attempts  to 
amend  the  constitution  of  Indiana  have  resulted  in  failures 
on  account  of  the  indifference  of  the  voters.  In  November, 
1906,  a  much  needed  amendment  to  which  there  was  little 
opposition,  was  submitted  to  the  voters  of  that  State  and  it 
had  the  singular  fate  of  being  voted  on  by  only  one-twelfth 
of  the  voters  who  went  to  the  polls.  Where  a  majority  of 
those  voting  on  the  proposition  to  amend  is  sufficient  to  adopt, 
it  sometimes  happens  that  amendments  are  carried  by  a 
small  minority  of  voters.  This  happened  in  Louisiana  in  No- 
vember, 1906,  where  several  important  amendments  were 
adopted  by  a  vote  of  one-sixth  of  the  electorate. 

Experience  with  the  referendum  on  State  statutes  and  mu- 
nicipal questions  shows  less  indifference  on  the  part  of  the 
voters,  but  with  rare  exceptions,  the  abstentions  are  more 
numerous  than  the  votes  cast,  so  that  the  results  often  repre- 
sent the  opinions  of  the  minority  rather  than  of  the  ma- 
jority. 

Of  all  the  municipalities  in  the  country,  Chicago  has  had 
perhaps  the  most  satisfactory  experience  with  the  referendum 
and  the  results  there  have  been  such  as  to  encourage  the 
belief  that  direct  legislation  within  proper  restrictions  may 
be  practicable  under  modern  urban  conditions.  During  the 
last  five  years,  the  electors  of  that  city  have  been  called  upon 
to  pass  judgment  on  not  less  than  fifteen  propositions  of 
State  or  municipal  policy  and  in  almost  every  case,  an  intelli- 


308  READINGS  IN  CIVIL  GOVERNMENT 

gent  use  has  been  made  of  their  power.  Furthermore,  what  is 
remarkable  when  compared  with  the  experience  of  other  cities, 
the  proportion  of  votes  cast  on  the  various  questions  submit- 
ted aggregated  in  most  cases  about  two-thirds  of  the  total 
vote  cast  at  the  election  and  in  a  few  instances  the  proportion 
was  considerably  larger,  thus  showing  an  absence  of  that 
popular  indifference  which  in  so  many  other  places  has  led 
to  a  practical  breakdown  of  the  referendum.  But  for  the 
most  part,  the  questions  upon  which  the  referendum  was 
taken  related  to  municipal  policies  in  which  all  classes  of  the 
people  felt  a  deep  personal  interest,  and  since  the  vote  in 
each  case  was  preceded  by  a  campaign  of  education  by  the 
advocates  and  opponents  of  the  various  measures  submitted, 
it  was  not  unnatural  that  large  votes  should  have  been  polled. 
But  where  propositions  were  submitted  which  were  semi- 
technical  in  character,  which  had  a  general  rather  than  a 
local  interest,  and  which  were  not  elucidated  by  public  debate 
and  discussion,  such  for  example,  as  the  proposition  to  en- 
able the  commissioners  of  the  Illinois  and  Michigan  Canal 
to  sell  certain  lands,  popular  interest  was  slight  and  the 
propositions  were  defeated  by  default  rather  than  by  oppo- 
sition. We  may  conclude,  therefore,  that  a  limited  use  of  the 
referendum  may  be  desirable  in  the  interest  of  popular  con- 
trol and  political  education,  but  rarely  for  administrative 
efficiency.  If  applied  to  simple  questions  of  public  policy  of 
a  purely  local  character  in  which  the  masses  of  voters  have  a 
personal  interest  such  as  they  have  in  the  choice  of  public 
officers,  the  referendum  may  subserve  a  useful  purpose 
both  by  way  of  restraint  upon  the  government  and  by  way 
of  popular  education  and  stimulation  of  interest  in  public 
affairs.  But  in  general  application  to  large  districts  and  to 
general  questions  of  legislative  policy  or  to  quasi-technical 
questions  of  an  administrative  character,  the  referendum  has 
no  place  and  can  only  lead  to  results  which  are  worthless  if 
not  mischievous. 

On  the  whole,  experience  with  the  initiative  and  referen- 
dum shows  that  their  use,  particularly  for  the  determination 


STATE  LEGISLATION  309 

of  questions  of  administrative  policy,  should  be  restricted 
rather  than  extended.  The  growing  disposition  to  take  a 
referendum  on  every  question  of  public  policy  upon  which 
there  may  be  a  difference  of  opinion,  strikes  at  the  root  of 
efficient  business-like  administration.  The  practice  of  taking 
a  referendum  on  several  questions  at  the  same  time  at  which 
an  election  of  officers  is  held  greatly  complicates  the  election, 
confuses  issues  of  policy  with  personal  issues  and  leads  to 
results  which  do  not  represent  the  popular  will.  This  is  the 
testimony  of  the  election  commissioners  of  Chicago  where  this 
practice  has  caused  considerable  dissatisfaction.  To  provide 
separate  elections,  however,  in  order  to  simplify  matters  and 
permit  independent  judgments  on  the  measures  submitted 
would,  of  course,  add  greatly  to  the  expense  of  holding  elec- 
tions in  addition  to  the  loss  of  time  and  the  demoralization 
incident  to  an  election.  In  most  States  there  are  already  too 
many  elections  (Illinois  is  a  notable  example)  and  any  propo- 
sition which  contemplates  an  addition  to  the  list  is  subject  to 
serious  objection  whatever  may  be  its  merits  in  other  respects. 
It  is  not  at  all  unlikely  that  we  shall  soon  witness  a  reaction 
against  the  present  clamor  for  more  direct  government  by  the 
masses.  The  idea  of  the  right  of  everybody  to  take  part  in 
public  affairs  by  proposing  laws  for  the  good  of  the  country 
has  an  attractive  ring  to  it,  but  in  practice,  says  Professor 
Lowell,  it  has  not  proved  of  value.  The  same  judgment  must 
be  expressed  with  regard  to  the  use  of  the  referendum,  except 
where  it  is  employed  in  accordance  with  the  restrictions  and 
conditions  indicated  above.  The  representative  system,  with 
all  its  faults,  will  sooner  or  later  come  to  be  better  appre- 
ciated as  the  glaring  defects  of  direct  legislation  become  more 
manifest.  If  there  be  one  principle  clearer  than  another,  says 
Woodrow  Wilson,  it  is  this :  that  in  business,  whether  of  gov- 
ernment or  of  mere  merchandise,  somebody  must  be  trusted. 
Power  and  strict  accountability  are  the  essential  constituents 
of  good  government.  Jefferson,  whom  the  friends  of  the 
initiative  and  referendum  never  cease  to  quote  in  support  of 
their  schemes,  saw  that  government  was  practicable  only 


310  READINGS  IN  CIVIL  GOVERNMENT 

when  carried  on  by  a  comparatively  few  men.  There  is  a 
natural  aristocracy,  he  said,  founded  on  talent  and  virtue 
which  seems  destined  to  govern  societies;  and  of  all  forms 
the  best  is  that  which  provides  for  the  introduction  of  this 
class  into  the  government.  Lecky  in  his  Democracy  and  Lib- 
erty has  pointed  out  the  dangers  of  government  by  those 
whom  he  calls  the 

"poorest,  the  most  ignorant,  the  most  incapable  who  are  necessarily 
the  most  numerous."  Such  an  idea,  he  says,  "reverses  all  the  past 
experience  of  mankind.  In  every  field  of  human  enterprise,"  he 
continues,  "in  all  the  competitions  of  life,  by  the  inexorable  law  of 
nature,  superiority  lies  with  the  few  and  not  with  the  many,  and 
success  can  be  obtained  by  placing  the  guiding  and  controlling  power 
mainly  in  their  hands." 

ADDITIONAL  READINGS 

I — Procedure  in  State  Legislatures,  Reinsch,  P.,  American 
Legislatures  and  Legislative  Methods,  183-95. 

2 — Legislative  Apportionments,  Ibid.,  196-213. 

3 — Intelligent  Legislation,  Hoyt,  F.  M.,  Proceedings  of  the 
American  Political  Science  Association,  IV,  104—12. 

4 — Uniform  Legislation  in  the  States,  Stimson,  F.  J.,  Annals 
of  the  American  Academy  of  Political  and  Social  Science, 
1905,  I,  829-64. 

5 — Over  Production  of  Law,  Coxe,  A.  C.,  Columbia  Law  Re- 
view, VI,  102-9. 

6 — The  Initiative  and  Referendum  in  Oregon,  Thacher,  Geo. 
A.,  Proceedings  of  the  American  Political  Science  As- 
sociation, IV,  198-221. 


CHAPTER  XIV 
THE  STATE  JUDICIARY 

61.   ELECTION    AND    TENURE    OF    STATE    JUDGES. 

The  practice  of  choosing  State  judges  by  popular  vote  which  pre- 
vails in  a  large  majority  of  the  States  is  apt  to  bring  the  judiciary 
into  politics,  a  result  which  every  effort  should  be  made  to  avoid. 
Fortunately  there  is  a  tendency  to  lengthen  the  term  of  years  for 
which  the  judges  hold  office,  and  this  by  reducing  the  frequency  of 
elections,  tends  to  offset  the  ill  effects  of  that  mode  of  choice.  Judge 
Simeon  E.  Baldwin  discusses  these  points  in  the  following  manner: 

Thirteen  States  in  all  originally  gave  to  the  Governor  the 
power  either  of  appointing  or  of  nominating  the  judges  of 
the  higher  courts;  fourteen  gave  their  election  to  the  legis- 
lature; the  rest  preferred  an  election  by  the  people.  If  we 
compare  the  original  practice  in  each  State  with  its  present 
practice,  we  find  that  there  are  now  fewer  in  which  the  Gov- 
ernor appoints  or  nominates;  fewer  in  which  the  legislature 
elects;  more  in  which  the  people  do.  Legislative  elections 
have  been  found  'to  imply  a  system  of  caucus  nominations, 
and  have  often  led  to  a  parcelling  out  of  places  among  the 
different  counties  in  which  geographical  considerations  told 
for  more  than  did  fitness  for  office.  In  one  State  since  1880, 
the  legislature  has  elected  on  the  Governor's  nomination.  In 
practice  they  have  never  failed  to  act  favorably  upon  it. 

Mississippi,  which,  in  1832,  became  a  leader  in  the  move- 
ment toward  the  choice  of  the  judges  by  popular  election,  in 
her  latest  Constitution  (of  1890)  follows  the  plan  of  the 
United  States,  the  Governor  nominating  and  the  Senate  con- 
firming. 

The  action  of  the  confirming  or  electing  body  when  un- 

311 


312  READINGS  IN  CIVIL  GOVERNMENT 

favorable  in  any  State  has  generally  been  unfortunate.  It 
is  apt  to  be  affected  by  local  or  personal  political  influence 
to  which  the  chief  executive  would  be  insensible.  A  large 
number  of  able  men  have  thus,  from  time  to  time,  been  de- 
prived of  a  seat  on  the  Supreme  Court  of  the  United  States 
who  would  have  added  to  its  luster.  In  1867  Massachusetts 
lost  a  Chief  Justice  of  the  first  rank  in  this  way  by  the  defeat 
of  Benjamin  F.  Thomas.  The  council  refused,  by  a  ma- 
jority of  one,  to  confirm  his  nomination  because,  though  of 
the  same  party  with  them,  he  was  of  a  different  wing. 

In  most  of  the  States  the  judges  are  now  elected  by  the 
people.  This  makes  the  choice  more  a  political  affair. 
The  nominations  are  made  by  party  conventions,  and  gen- 
erally in  connection  with  others  of  a  purely  political  character. 
It  also,  in  case  of  a  nomination  for  re-election,  places  a  judge 
on  the  bench  in  the  disagreeable  position  of  being  a  candi- 
date for  popular  favor  at  the  polls  and  an  object  of  public 
criticism  by  the  political  press. 

In  1902  a  justice  of  the  Supreme  Court  of  Michigan  was 
nominated  for  re-election.  There  was  an  opposing  candidate, 
some  of  whose  friends  published  a  statement  that  in  the  nine 
years  during  which  the  justice  had  already  served  he  had 
written  opinions  in  68  railroad  and  street  railway  cases  of 
which  51  were  in  favor  of  the  companies.  He  was  re-elected, 
but  some  time  afterwards  this  fact  was  reprinted  in  a  local 
periodical  accompanied  by  the  remark  that  "we  must  con- 
clude that  either  the  railroad  and  railway  companies — 4  to  1 — 
had  exceptionalfy  good  cases  from  the  standpoint  of  law  and 
justice  or  his  Honor's  mind  was  somewhat  warped  in  their 
favor.  .  .  .  You  can't  expurge  mental  prejudice  from 
judicial  opinions  any  more  than  you  can  from  the  reasonings 
of  theologians  and  atheists.  ...  To  imagine  a  justice 
deciding  a  case  against  his  personal  interests  is  too  great  a 
stretch  of  imagination  for  us  to  appreciate." 

A  less  brutal  but  more  dangerous  attack,  made  in  1903  by 
a  religious  newspaper,  illustrates  the  same  evil.  The  Su- 
preme Court  of  Nebraska  has  decided  that  under  their  Con- 


THE  STATE  JUDICIARY  313 

stitution  the  Bible  cannot  be  used  in  the  public  schools.  It 
was,  of  course,  a  pure  question  of  the  construction  of  a  law, 
for  the  policy  of  which  the  court  had  no  responsibility.  The 
newspaper  in  question  which,  though  published  in  the  East, 
had  some  circulation  in  that  State,  printed  this  paragraph: 

"The  Supreme  Court  judge  of  Nebraska  who  wrote  the 
decision  that  the  State  Constitution  prohibits  the  use  of  the 
Bible  in  the  public  schools  is  standing  for  re-election,  and 
the  fact  that  he  made  such  a  decision  is  not  forgotten  by  the 
Christian  voters. " 

In  States  the  control  of  which  by  one  of  the  great  political 
parties  is  assured,  the  real  contest  is  for  the  nomination,  and 
here  there  is  even  more  license  for  unfavorable  comment  on 
the  judicial  record  of  one  who  seeks  it.  In  a  Southern  State 
there  was  such  a  struggle  in  1903  for  the  nomination  of  the 
prevailing  party  for  Governor.  The  person  who  then  held 
that  place  desired  it.  So  did  one  of  the  justices  of  the  Su- 
preme Court.  It  is  said  that  the  friends  of  the  former  circu- 
lated a  cartoon  representing  the  five  justices  together  as  five 
jackasses,  and  another  in  which  the  justice  whom  they  were 
trying  to  run  off  the  field  was  caricatured  in  the  act  of  set- 
ting aside  a  verdict  in  favor  of  a  child  injured  by  a  railway 
accident.  The  two  candidates  subsequently  met  upon  the 
platform  for  a  joint  discussion  of  the  issues  before  the  people. 
The  Governor  sharply  criticised  the  character  of  the  Su- 
preme Court.  The  judge  caught  him  by  the  collar  and  was 
about  to  strike  him  when  friends  intervened,  and  an  ex- 
planation of  the  remarks  was  made  which  was  accepted  as  sat- 
isfactory. 

In  the  heat  of  a  political  campaign  men  do  not  always  stop 
to  measure  words  or  weigh  questions  of  propriety.  The  per- 
sonal character  and  public  acts  of  an  opponent  are  a  legiti- 
mate subject  of  description  and  comment.  Sharp  attacks 
must  be  expected  as  a  natural  incident  of  such  a  contest,  and 
by  candidates  for  judicial  office  as  well  as  others.  The  public 
record  of  all  for  whom  votes  are  asked  at  a  public  election 
must  be  the  subject  of  open  criticism,  or  there  would  be  dan- 


314  READINGS  IN  CIVIL  GOVERNMENT 

ger  that  unworthy  men  would  succeed.  To  treat  such  obser- 
vations as  have  been  quoted  upon  opinions  previously  written 
by  a  candidate  for  re-election,  however  unseemly  or  unjust, 
as  a  contempt  of  court  would  be  indirectly  to  impair  the  right 
of  free  suffrage.  .  .  . 

Political  contests  cost  money,  and  if  judges  appear  as  can- 
didates for  popular  suffrage  they  are  naturally  expected  to 
contribute  to  the  expense.  The  other  candidates  on  the  same 
ticket  do  this,  and  if  those  nominated  for  the  bench  did  not, 
somebody  would  have  to  do  it  for  them,  thus  bringing  them 
under  obligations  that  might  have  an  unfortunate  appear- 
ance, if  not  an  unfortunate  effect.  In  New  York,  where  some 
of  the  judicial  salaries  are  higher  than  anywhere  else  in  the 
country,  and  the  terms  for  the  highest  places  are  long  (four- 
teen years),  it  has  been  customary  for  those  placed  in  nom- 
ination to  contribute  a  large  sum  to  the  campaign  expenses 
of  their  party.  This  is  tacitly  understood  to  be  a  condition 
of  their  accepting  the  nomination,  and  the  amount  to  be  paid 
is  fixed  by  party  practice.  For  an  original  nomination  by 
the  party  in  power,  it  is  said  to  be  about  equal  to  a  year's 
salary ;  for  a  renomination  half  that  sum  may  suffice. 

But  a  judge  holding  office  by  popular  election  must  in  any 
case  owe  something  to  somebody  for  supporting  his  candidacy. 
He  is  therefore  under  a  natural  inclination  to  use  his  power, 
so  far  as  he  properly  can,  in  such  a  way  as  to  show  that  he 
has  not  forgotten  what  his  friends  have  done  for  him.  There 
is  always  a  certain  amount  of  judicial  patronage  to  be  be- 
stowed. There  are  clerks  and  messengers,  trustees  and  re- 
ceivers, referees  and  committees,  perhaps  public  prosecuting 
attorneys  and  their  assistants,  to  appoint.  Other  things 
being  equal,  no  one  would  blame  a  judge  for  naming  a  po- 
litical friend  for  such  a  position.  But  as  to  whether  other 
things  are  equal  he  is  to  decide.  To  the  most  upright  and 
fearless  man  the  danger  of  this  is  great;  to  a  weak  or  bad 
man  the  feeling  of  personal  obligation  will  be  controlling. 
Justice  Barnard  of  the  Supreme  Court  of  New  York  once 
observed  on  the  bench  that  judges  had  considerable  patron- 


THE  STATE  JUDICIARY  315 

age  to  be  disposed  of  at  their  discretion,  and  that  for  his  part 
he  had  always  succeeded  in  life  by  helping  his  friends  and 
not  his  enemies.  For  this  practice,  among  other  things,  he 
was  impeached  and  removed  from  office;  but  how  many 
judges  are  there  who  yield  to  this  temptation  without  avow- 
ing it?  ... 

Most  of  the  old  thirteen  States  in  their  first  Constitutions 
provided  that  the  judges  of  their  highest  courts  should  hold 
office  during  good  behavior,  or  until  seventy  years  of  age. 
New  York  at  first  put  the  age  of  superannuation  at  sixty, 
but  after  losing  by  this  the  services  of  Chancellor  Kent  for 
some  of  his  best  and  most  fruitful  years,  postponed  it  to  sev- 
enty. Georgia  was  the  first  to  set  the  fashion  of  short  terms. 
Her  Constitution  of  1798  provided  that  the  judges  of  her 
highest  court  should  be  "elected"  for  three  years,  but  that 
those  of  her  inferior  courts  should  be  " appointed"  by  the 
legislature  and  hold  during  good  behavior.  The  legislature 
construed  this  as  allowing  it  to  frame  such  a  scheme  of  elec- 
tion as  it  thought  best,  and  that  adopted  was  for  the  House 
to  nominate  three,  from  whom  the  Senate  elected  one. 

In  all  but  three  States  (Massachusetts,  New  Hampshire  and 
Rhode  Island)  at  the  present  time  all  judges  hold  for  a  term 
of  years,  and  as  a  general  rule  those  of  the  higher  courts  have 
longer  terms  than  those  of  the  inferior  ones.  The  change 
from  life  tenure  to  that  for  a  term  of  years  was  partly  due 
to  several  instances  which  occurred  early  in  the  nineteenth 
century,  in  which  it  was  evident  that  judges  had  outlived 
their  usefulness.  Judge  Pickering  of  the  District  Court  of 
New  Hampshire  lost  his  reason,  and  to  get  rid  of  him  it  be- 
came necessary  to  go  through  the  form  of  impeachment.  In 
1803,  Judge  Bradbury  of  the  Supreme  Judicial  Court  of 
Massachusetts,  who  had  been  incapacitated  by  paralysis,  was 
displaced  in  the  same  way,  though  only  a  few  months  before 
his  death.  In  1822,  an  old  man  who  was  the  chief  judge  of 
one  of  the  judicial  districts  of  Maryland  was  presented  by 
the  grand  jury  as  a  "serious  grievance,"  on  account  of  his 
habitual  absence  from  court.  His  physician  certified  that  his 


316  READINGS  IN  CIVIL  GOVERNMENT 

life  would  be  hazarded  if  he  undertook  to  attend,  but  the 
natural  answer  was  that  then  he  should  resign. 

At  present,  for  judges  of  the  State  courts  of  last  resort, 
the  term  in  Pennsylvania  is  twenty-one  years  (but  with  a 
prohibition  of  re-election);  in  Maryland,  fifteen;  in  New 
York,  fourteen;  in  California,  Delaware,  Louisiana,  Virginia, 
and  West  Virginia,  twelve;  in  Michigan,  Missouri,  and  Wis- 
consin, ten;  in  Colorado,  Illinois,  and  Mississippi,  nine.  The 
general  average  is  eight,  although  that  particular  number 
obtains  in  but  seven  States.  In  eighteen  it  is  six.  The  short- 
est term  is  two,  and  is  found  in  Vermont.  It  may  be  noted 
that  the  original  rule  in  Vermont  was  to  elect  judges  annu- 
ally. As  compared  with  the  terms  of  office  prescribed  at  the 
middle  of  the  nineteenth  century,  those  of  the  opening  of  the 
twentieth  are  on  the  average  decidedly  longer. 

62.    JURY  TRIAL. 

The  following  excellent  description  of  trial  by  jury  as  prac- 
ticed in  the  several  States  is  taken  from  Judge  Emlin  McClain's 
book  on  constitutional  law: 

By  some  suitable  means  of  procedure  twelve  person- 
secured  for  the  trial  of  the  particular  case;  they  are  usually 
required  to  be  citizens  of  the  state  or  United  States,  as  the 
case  may  be,  possessing  full  mental  capacity  and  in  the  en- 
joyment of  the  faculties  of  seeing  and  hearing  so  that  they 
may  rightly  and  fully  comprehend  the  evidence  presented  to 
them.  It  is  usually  required  that  they  be  selected  from  the 
class  of  persons  who  are  entitled  to  exercise  the  elective  fran- 
chise, but  there  is  no  necessary  connection  between  the  right 
to  vote  and  the  capacity  to  serve  as  juror. 

Some  classes  of  persons  are  as  a  matter  of  public  policy 
exempted  from  the  obligation  to  serve  on  juries,  such  ex- 
emptions usually  extending  to  physicians,  lawyers,  teachers, 
and  public  officers  whose  business  or  public  duties  are  such 
as  to  be  seriously  interfered  with  to  the  public  detriment 
if  jury  service  is  required  of  them.  It  is  left  discretionary 


THE  STATE  JUDICIARY  317 

with  the  court  to  excuse  in  particular  instances  other  persons 
who  by  reason  of  some  special  emergency  would  be  unreason- 
ably inconvenienced  or  damaged  by  such  compulsory  service ; 
but  mere  interference  with  ordinary  business  or  occupation 
is  not  regarded  as  just  ground  of  excuse,  for  the  citizen  can 
be  properly  required  to  perform  his  public  duties  without 
regard  to  the  effect  upon  his  private  interests. 

A  juror  to  be  qualified  to  sit  in  a  case  must  be,  however, 
not  only  generally  qualified  to  discharge  such  duty,  but  he 
must  also  be  qualified  with  reference  to  the  particular  case 
in  which  he  is  to  sit ;  that  is,  he  must  be  substantially  without 
bias  or  prejudice  which  would  be  likely  to  interfere  with  his 
rendering  a  fair  and  impartial  verdict.  Therefore  one  who 
has  formed  or  expressed  an  opinion  as  to  the  merits  of  the 
case,  or  is  so  related  to  one  of  the  parties  that  he  is  likely 
to  be  predisposed  to  favor  him,  or  who  occupies  a  position  of 
hostility  towards  one  of  the  parties  which  would  predispose 
him  to  a  decision  hostile  to  such  party's  interests  may  prop- 
erly be  excluded.  The  general  and  special  qualifications  of 
each  particular  juror  are  inquired  into,  and  if  for  any  reason 
he  appears  to  be  disqualified  the  party  desiring  that  he  shall 
not  serve  as  a  juror  in  the  trial  of  the  case  interposes  a  chal- 
lenge for  cause,  and  if  the  judge  considers  the  objection  to  be 
well  taken  such  person  is  not  selected  as  one  of  the  jurors. 

There  may  be  special  reasons  why  a  person  called  as  a 
juror  would  not  be  likely  to  render  a  fair  verdict  in  a  case 
between  the  parties,  other  than  the  general  reasons  just  sug- 
gested, and  it  is  usually  provided  that  each  party  shall  have 
a  number  of  so  called  peremptory  charges  which  he  may  ex- 
ercise for  the  purpose  of  excluding  such  persons  from  the 
jury  as  he  desires  to  object  to,  although  no  legal  reason  for 
such  exclusion  is  given.  When  twelve  persons  are  secured 
against  whom  no  valid  objection  is  found  to  exist  and  to 
whom  no  peremptory  challenge  is  interposed,  these  twelve 
persons  are  sworn  to  render  a  fair  and  impartial  verdict  in 
the  case  and  become  the  jury  for  the  trial. 

The  jurors  thus  sworn  hear  the  evidence  which  the  trial 


318  READINGS  IN  CIVIL  GOVERNMENT 

judge  permits  to  be  offered.  In  determining  what  evidence 
is  to  be  offered  and  considered  the  judge  applies  rules  of  law 
and  the  jury  is  authorized  only  to  consider  the  evidence 
which  is  submitted  to  them.  They  have  no  right  to  take  into 
account  matters  of  fact  not  shown  by  the  evidence,  such  as 
particular  facts  relating  to  the  case  which  they  know  or  be- 
lieve as  of  their  own  knowledge.  They  are  to  try  the  case 
under  the  direction  of  the  court  as  to  what  testimony  or  facts 
are  properly  admissible  as  affecting  the  verdict  which  they 
shall  render. 

Having  heard  the  evidence  submitted  to  them,  the  jurors 
are  instructed  by  the  judge  as  to  the  rules  of  law  which  they 
are  to  follow  in  reaching  a  conclusion  from  the  evidence  that 
is  submitted,  and  they  have  no  right  to  exercise  their  own 
judgment  as  to  the  rules  and  principles  of  law  applicable  to 
the  case.  The  determination  of  the  law  is  for  the  judge  in 
the  discharge  of  his  legal  duty.  But  the  credibility  of  the 
witnesses  and  the  weight  of  the  evidence  is  for  tho  determina- 
tion of  the  jury  in  the  exercise  of  their  discretion,  and  the 
judge  should  not  interfere  with  or  control  them  in  its  exer- 
cise. In  some  states  the  statutes  very  specifically  prohibit  any 
comments  by  the  judge  as  to  the  credibility  of  the  witnesses  or 
weight  of  the  evidence;  in  other  states  and  in  the  federal 
courts  the  judge  may  discuss  the  evidence  for  the  enlighten- 
ment of  the  jury,  though  he  cannot  control  the  conclusions 
which  they  see  fit  to  draw  from  the  evidence  properly  pre- 
sented to  them  (Vicksburg,  etc.  R.  Co.  v.  Putnam). 

After  being  instructed  by  the  judge  as  to  the  law  applica- 
ble to  the  case  the  jurors  consider  by  themselves,  without  the 
presence  of  the  judge  or  any  other  person,  the  evidence  sub- 
mitted to  them  and  the  instructions  given,  and  if  they  are  able 
to  do  so  they  agree  unanimously  upon  a  verdict  in  favor  of 
one  party  or  the  other.  If  they  are  unable  to  agree  on  a  ver- 
dict then  the  case  must  be  re-submitted  in  full  before  another 
jury,  for  according  to  the  common  law  no  verdict  can  be 
rendered  one  way  or  the  other  unless  all  the  jurors  concur 
therein.  In  some  states  there  are  constitutional  provisions  for 


THE  STATE  JUDICIARY  319 

a  majority  verdict  or  for  a  verdict  of  a  specified  number  of 
jurors  more  than  a  majority  but  less  than  all,  but  any  such 
provision  constitutes  a  modification  of  the  common-law  jury 
trial. 

The  conclusion  of  the  jury  as  to  the  facts  reached  under 
the  direction  of  the  court  as  to  the  law  is  a  final  and  con- 
clusive determination  of  the  case  which  the  judge  must  rec- 
ognize and  embody  in  the  final  judgment  to  be  rendered  by 
the  court  as  the  result  of  the  trial.  If  it  is  manifest  that 
the  jury  has  not  followed  the  direction  of  the  judge  in  apply- 
ing the  law,  the  verdict  may  be  set  aside  by  the  judge  and 
a  new  trial  granted.  If  the  judge  is  satisfied  that  in  some 
essential  respect  there  is  no  competent  evidence  to  support 
the  verdict  of  the  jury,  he  may  set  it  aside  as  not  supported 
by  the  evidence.  If  the  judge  is  satisfied  that  the  jurors  have 
rendered  their  verdict  as  the  result  of  passion  or  prejudice 
and  not  through  a  full  and  fair  consideration  of  the  evidence 
submitted,  he  may  set  it  aside  on  that  ground.  If  the  jurors 
have  been  guilty  of  some  misconduct  such  as  conversing  with 
persons  outside  of  court  with  reference  to  the  merits  of  the 
case  while  it  is  being  tried,  or  have  allowed  other  persons  to 
be  present  during  their  deliberations,  or  have  heard  state- 
ments by  fellow-jurors  as  to  facts  not  shown  by  the  evidence 
and  calculated  to  influence  them  in  reaching  a  conclusion,  or 
have  determined  the  result  otherwise  than  by  a  consideration 
of  the  evidence,  as  by  casting  lots  to  determine  what  their 
verdict  shall  be,  then  the  judge  will  set  aside  their  verdict  for 
such  misconduct.  The  result  of  setting  aside  the  verdict  is 
in  all  cases  that  a  new  trial  is  ordered.  No  irregularity  on 
the  part  of  the  jury  in  reaching  a  verdict  will  justify  the 
judge  in  rendering  a  decision  for  one  party  or  the  other. 
The  judge  may  also  set  aside  a  verdict  and  grant  a  new 
trial  if  he  is  convinced  that  he  himself  has  committed  an 
error  in  material  rulings  on  the  admission  of  evidence  or  in 
instructing  the  jury  as  to  the  law.  In  criminal  prosecutions 
the  rule  that  the  accused  shall  not  be  twice  put  in  jeopardy 
for  the  same  crime  makes  a  verdict  of  "not  guilty"  con- 


320  HEADINGS  IN  CIVIL  GOVERNMENT 

elusive  regardless  of  any  error  of  law  or  misconduct  of  the 
jury,  but  if  the  verdict  is  against  the  accused  then  the  same 
judicial  discretion  may  be  exercised  by  the  judge  as  in  a  civil 
case  in  setting  aside  the  verdict  and  granting  a  new  trial. 

Constitutional  provisions  as  to  jury  trial  are  in  general  ap- 
plicable only  to  courts  of  general  jurisdiction.'  Inferior 
courts  may  be  provided  for  in  which  questions  of  fact  may 
be  tried  before  a  jury  of  less  than  twelve,  or  even  without 
a  jury,  the  right  of  jury  being  sufficiently  preserved  in  such 
cases  if  an  appeal  from  the  judgment  of  such  a  court  to  a  court 
of  general  jurisdiction  is  provided  for  in  which  a  jury  trial 
may  be  had  (Capital  Traction  Co.  v.  Hof).  In  limiting  the  re- 
quirements as  to  jury  trial  to  cases  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  intention  evidently  was 
to  allow  Congress  to  provide  if  it  saw  fit  for  the  trial  of  petty 
cases  in  the  federal  courts  without  a  jury;  but  as  a  matter 
of  fact  no  provision  is  made  for  such  trials. 

63.   PROBLEMS    OP    TRIAL    BY    JURY. 

The  jury  is  a  very  venerable  institution,  the  origin  of  which  dates 
back  to  the  twelfth  century.  But  despite  its  long  history  and  the 
veneration  with  which  the  jury  is  regarded  by  most  lawyers,  there 
are  some  who  venture  to  criticise  severely  some  of  the  practices  which 
have  grown  up  in  this  country  in  connection  with  jury  trials. 
Among  these  critics  is  Mr.  James  E.  Babb,  who  makes  the  following 
objections  to  present  methods:  [1907]. 

A  theoretically  perfect  trial  is  no  more  to  be  expected  by 
a  jury  than  theoretically  perfect  government  is  to  be  expected 
in  a  democracy,  unless  the  democracy  be  one  ideally  per- 
fected in  intelligence  and  morality.  From  such  trials  and 
from  such  government  we  get  the  product,  not  of  the  most 
skilled,  but  only  of  the  average  man,  the  development  and 
perfection  of  whom  is  the  chief  object  of  our  institutions. 

We  find,  therefore,  perhaps  no  more  of  error  and  wrong 
taking  place  in  trials  by  jury  than  are  found  in  our  legisla- 
tures, executive  and  administrative  officers.  In  the  largest 


THE  STATE  JUDICIARY  321 

sense,  therefore,  fundamentally  the  difficulties  which  we  meet 
in  the  jury  system  are  met  in  every  department  of  government, 
and  the  fundamental  remedy  for  these  defects  is  the  intelli- 
gence, morality  and  fidelity  of  the  people,  for  which  we  must 
look  to  the  home,  the  school  and  the  church.  No  class  can  be 
immune  from  the  effects  of  the  votes  of  electors  and  jurymen. 
The  production  of  a  high  grade  of  average  man  is  our  salva- 
tion. 

Coming  directly  to  the  machinery  applicable  to  the  jury 
system  alone,  the  evils  are  a  combination  of  defect  in  regula- 
tion and  administration,  and  the  chief  of  these,  which  in 
some  instances  is  a  defect  of  regulation,  and  in  others  of 
administration,  is  the  desertion  of  jury  duty. 

In  many,  and  doubtless  most,  of  the  States  men  occupy- 
ing the  higher  positions  in  all  lines  of  activity  have  suc- 
cessfully, and  practically  totally,  evaded  jury  service,  and 
from  this  class  has  come  the  main  criticism  upon  jury 
trials.  They  seem  to  have  overlooked  the  fact  that  the 
criticism  aimed  at  others  must  necessarily  rebound  upon 
themselves;  that  if  they  had  discharged  their  duties,  almost 
every  jury  would  contain  upon  it  sufficient  of  them  to  pre- 
vent, in  any  case,  a  verdict  representing  in  an  extreme 
sense,  class,  corporate  or  social  prejudice,  or  bias,  or  mis- 
conception of  the  evidence.  While  the  law  contemplates  a 
fair  distribution  of  jury  service,  it  will  be  found  that  the 
officers  having  to  do  with  its  execution,  find  themselves 
under  severe  criticism  if  they  force  upon  the  jury  list  a 
man  whose  time  is  of  unusual  value,  and  at  the  same  time 
these  officers  selecting  such  a  man  for  jury  service  would 
receive  additional  criticism  from  the  professional  juryman, 
who  has  been  watching  for  the  place  and  who  has  thus 
been  displaced.  The  officials  having  to  do  with  the  selec- 
tion of  jury  lists  have  found  the  burden  of  double  criticism 
too  much  endangers  success  at  the  primaries  and  elections, 
and  aided,  as"  well,  by  a  spirit  of  accommodation,  have 
drifted  into  the  practice  of  passing  over  the  names  of  those 
who  would  be  offended  at  being  called,  and  of  placing  upon 


322  READINGS  IN  CIVIL  GOVERNMENT 

the  lists  those  who  would  consider  the  opportunity  one  of 
comfort,  satisfaction  and  profitable  employment,  and  occa- 
sionally, perhaps,  there  is  always  a  possibility  that  consid- 
erations much  more  dangerous  control  the  officer's  discretion. 

In  this  way  we  have  the  chief  cause  of  current  failure  in 
jury  trials.  This  disloyal,  and  rather  discreditable  deser- 
tion of  public  duty  has  found  excuse,  not  only  in  serious 
interference  with  important  business  duties,  but  in  the 
almost  barbarous,  as  well  as  unhealthful,  treatment  to  which 
the  juror  in  service  is  subject,  also  in  the  insufficient  com- 
pensation which  attaches  to  the  service. 

The  service  is  one,  unavoidably,  most  arduous,  and  incon- 
venient. It  comes  of  a  sudden,  it  is  so  temporary  as  not 
to  justify  sufficient  preparation  for  its  interferences  with 
other  duties,  and  at  times  it  subjects  to  a  life  practically  of 
imprisonment.  It  is  a  duty,  however,  fundamental  and 
essential  and  not  to  be  evaded,  any  more  than  military 
service  in  time  of  war.  This  desertion  of  jary  duty  is 
similar  to  that  of  electors  in  failing  to  register  and  vote. 
In  a  popular  government  the  discharge  of  these  duties  is 
vital  and  must  be  exacted.  In  time  of  war  all  expect,  and 
readily  submit  to  the  propriety  of  the  most  instant  and 
severe  punishment  of  the  smallest  infractions  of  military 
duty.  We  have  failed  in  the  conception  that  there  is  ordi- 
narily as  much  of  importance  dependent  upon  the  proper 
discharge  of  the  duty  of  elector  and  of  juryman  as  there  is 
upon  the  discharge  of  picket  and  other  military  duty  in  the 
time  of  war.  Our  government  never  can  meet  its  responsibili- 
ties until  there  is  a  common  understanding  and  recognition 
that  the  duties  of  jurymen  and  electors  are  as  sacred,  as  im- 
portant, to  be  enforced  as  instantly  and  with  punishment  as 
adequate,  as  that  administered  for  the  enforcement  of 
military  duty.  This  evasion  of  service  has  created  and 
brought  into  existence  the  professional  juryman. 

The  difficulty  must  be  reached  by  an  amelioration  of  the 
conditions  of  jury  service  and  the  prevention  of  its  further 
evasion.  There  is  not  in  the  realm  of  public  questions  any- 


THE  STATE  JUDICIARY  323 

thing  of  more  importance  than  this  feature  of  the  subject 
under  consideration.  Beneficial  influences  upon  the  bench 
and  the  bar  would  result  from  the  improvement  of  the 
personnel  of  the  jury  box.  Would  not  the  judge  and  the 
lawyer,  the  witness  and  the  client,  be  more  attentive  to  their 
conduct  and  proceedings  if  they  found  in  the  jury  box  a 
representation  of  the  intelligence,  the  wealth  and  the  power 
in  the  community?  Would  not  the  bench,  the  lawyer,  and 
the  other  participants  in  court  proceedings  be  made  to  feel, 
from  this  class  in  the  jury  box,  their  open  resentment  of 
everything  smacking  of  shystery  or  dilatoriness  in  the  pro- 
ceedings of  the  court? 

In  this  way  the  questions  in  the  discussion  of  which  the 
public  is  arrayed,  involving  class  and  social  and  other 
strife  and  prejudice,  would  come  up  for  consideration  in 
the  jury  room  when  all  classes  were  represented  and  the 
education  and  understanding  growing  out  of  the  discussions 
there  to  be  had,  hand  to  hand  and  face  to  face,  could  not 
but  help  to  bring  about  an  easier  solution  of  the  refractory 
questions  in  our  social,  commercial  and  public  life. 

The  conviction  is  general  among  lawyers  that  many 
verdicts  are  rendered  upon  considerations  entirely  foreign  to 
the  evidence  and  law  of  the  case.  It  is  not  unlikely  that 
many  verdicts  have  been  produced  by  an  indisposition  of 
jurymen  to  be  kept  out  all  night,  sleeping  upon  the  floor 
or  upon  benches,  in  order  to  reduce  the  amount  of  damage 
or  punishment  that  may  be  imposed  upon  some  individual  or 
corporation  they  dislike.  There  are  many  considerations 
that  arise  from  the  peculiarities  of  cases  that  are  submitted 
to  jurymen  which  give  large  opportunity  for  influence  of 
collateral  considerations,  in  the  way  of  preconceptions,  biases, 
prejudices  and  matters  of  expediency.  The  verdict  of  the 
jury  is  general  in  terms,  rendering  it  impossible  to  deter- 
mine what  considerations  have  produced  it.  In  a  number 
of  the  States  statutes  have  been  passed  requiring  jurymen  in 
returning  a  general  verdict  to  answer  specific  questions  as 
to  their  findings  on  particular  facts,  such  questions  to  be 


324  READINGS  IN  CIVIL  GOVERNMENT 

submitted  by  the  court  at  the  request  of  counsel  for  the 
parties,  respectively.  The  courts  have  quite  generally  con- 
strued these  statutes  as  leaving  it  discretionary  with  the 
trial  court  whether  particular  questions  shall  be  submitted 
for  answer  by  the  jury.  The  trial  courts  have  so  uniformly 
exercised  the  discretion  to  refuse  any  such  interrogatories, 
that  attorneys  have  found  it  practically  a  waste  of  time  to 
request  the  submission  of  special  interrogatories.  Tlu-r 
no  practice  that  would  tend  more  to  eradicate  improper 
considerations  from  the  formation  and  rendition  of  verdicts 
than  the  practice  of  requiring  jurymen  to  respond  with 
answers  to  specific  questions  that  may  have  been  submitted 
to  them.  A  jury  that  will  drift  away  under  a  multitude  of 
considerations  from  the  merits  of  the  case  and  render  ,i 
general  verdict  from  considerations  entirely  foreign  to  the 
merits  of  the  case,  will  not  fail,  however,  to  respond  cor- 
rectly and  faithfully  in  answer  to  any  specific  question  of 
fact  or  individual  circumstance  involved  in  the  case  that 
may  be  submitted  to  them  for  answer.  When  a  general 
verdict  is  brought  in  with  answers  to  specific  interrogatories 
concerning  material  facts  in  the  case,  if  the  general  verdict 
is  found  by  the  court  to  be  contrary  to  the  judgment  which 
should  be  rendered  upon  the  facts  as  specifically  reported 
in  answer  to  interrogatories,  the  court  is  then  enabled  to 
render  a  correct  judgment  in  the  case,  e\en  if  it  be  in 
opposition  to  the  general  verdict  which  the  jury  may  have 
returned.  The  objection  to  this  practice  is  that  it  will  for 
a  number  of  years  at  least,  until  the  practice  has  been 
reduced  to  a  perfected  system  of  rules,  and  possibly  always, 
tend  to  occasion  more  new  trials  and  more  reversals  in  the 
supreme  court.  This,  while  a  serious  objection,  is  not  deter- 
minative. The  State  cannot  afford  to  allow  injustice  from 
erroneous  verdicts  from  any  consideration  of  mere  conven- 
ience or  expense. 


THE  STATE  JUDICIARY  325 


64.    THE  JURY   IN   CIVIL   CASES. 

It  frequently  happens  that  the  Jury  is  unable  to  reach  a  verdict 
in  the  case  submitted  to  them.  How  frequently  and  with  what  ill 
consequences  this  is  the  event,  is  discussed  in  the  following  article  by 
Mr.  A.  C.  Braxton:  [1904]. 

A  learned  author,  in  a  recent  book  on  the  jury  system, 
declares  that,  as  the  result  of  the  unanimity  rule,  "the 
number  of  mistrials  is  enormous. "  An  able  writer,  in  a 
magazine  article,  published  a  year  or  so  since,  stated  that 
"not  less  than  20  per  cent,  of  important  jury  cases  are 
abortive  by  reason  of  disagreement";  and,  in  a  discussion  in 
the  recent  Constitutional  Convention  of  Alabama,  it  was 
stated  that  at  least  25  per  cent,  of  the  cases  submitted 
to  juries  in  that  State  resulted  in  mistrials,  because  of 
their  inability  to  reach  a  unanimous  verdict.  Any  rule  which 
produces  even  an  approximation  to  such  results,  surely 
pronounces  its  own  condemnation. 

It  is  absurd  to  presume  that  verdicts  are  the  result  of 
actual  concurrence  of  opinion  on  the  part  of  all  twelve  of 
the  jurors.  It  is  well  known  that,  in  every  walk  of  life,  it 
is  practically  impossible  to  find  twelve  men  who  will  agree 
unanimously  upon  any  given  statement  of  fact,  involving  an 
appreciable  complexity;  and  so-called  "unanimous"  verdicts, 
in  contested  trials,  are,  in  nine  cases  out  of  ten,  the  result 
of  an  abandonment  of  their  real  views  by  more  or  less  of 
the  jurors.  A  curious  investigator  of  such  matters  has  pub- 
lished a  statement  that  the  probability  of  a  unanimous  verdict 
being  honest  and  without  compromise  or  concessions,  is  one 
in  500,000. 

The  great  inconvenience,  expense  and  delay  resulting  from 
the  unanimity  rule  in  civil  juries,  could  only  be  justified  on 
the  theory  that  the  concurrent  verdict  of  the  entire  jury  is  in- 
fallible; and  yet,  in  permitting  a  verdict  to  be  set  aside  as 
contrary  to  the  evidence,  the  law  allows  the  opinion  of  a  single 
judge  to  override  the  judgment  of  this  infallible  tribunal, 
unanimously  pronounced — thus  attributing  to  this  one  man 


326  READINGS  IN  CIVIL  GOVERNMENT 

more  wisdom  than  to  the  mystic  twelve  on  the  jury,  notwith- 
standing their  unanimity ! 

By  the  unanimity  rule,  an  opportunity  is  given  to  every 
stupid,  corrupt  or  prejudiced  man,  who  may  accidentally  get 
upon  a  jury,  to  effectually  stop  the  wheels  of  justice.  What 
better  field  of  operation  could  the  "jury-fixer"  desire  than  one 
in  which  it  is  only  necessary  for  him  to  successfully  tamper 
with  one  man  out  of  the  twelve  ?  And  the  danger  in  this  di- 
rection is  no  mere  theoretical  surmise.  In  1899  an  investiga- 
tion into  the  jury  system  of  Chicago  revealed  the  fact  that 
seven  bailiffs  of  the  court  were  implicated,  several  of  them 
being  in  the  "regular  hire'*  of  certain  corporations.  Twenty 
jurors,  in  their  scramble  to  turn  State's  evidence,  testified 
either  that  they  had  actually  received  money,  or  that  they  were 
offered  it,  to  hang  juries ;  and  doubtless  there  are  many  other 
palaces  of  justice  outside  of  Chicago,  which,  if  they  could  but 
speak,  would  unfold  tales  equally  as  shocking. 

How  disastrous  is  it  to  the  rights  of  the  poor  litigant,  when 
he  has  expended  his  last  farthing  and  exhausted  his  utmost 
efforts  in  presenting  his  cause  for  decision,  to  have  the  whole 
thing  end  in  a  miserable  abortion  without  any  verdict  at  all, 
because,  forsooth,  he  was  unable  to  do  that  which  is  required 
of  no  suitor  before  any  other  tribunal  on  earth — that  is,  to 
convince  every  single  one  of  his  judges  of  the  merits  of  his 
controversy ! 

The  whole  theory  of  civil  trials  is,  that  the  facts  need  only 
be  proven  by  a  preponderance  of  evidence.  The  rule  re- 
quiring the  exclusion  of  all  reasonable  doubt  applies  only  to 
criminal  cases,  and  is  based  upon  considerations  which  have 
no  application  to  civil  controversies.  When,  therefore,  in 
civil  cases,  the  law  demands  unanimity  in  the  verdict,  it  is 
simply  requiring  of  the  jury,  as  a  whole,  a  unanimity  of 
acquiescence  not  required  of  the  faculties  of  any  member  of 
the  jury,  as  an  individual. 

The  unreasonableness  of  the  unanimity  rule  in  civil 
verdicts,  the  inconvenience  and  expense  resulting  from  suoh 
a  rule,  and  the  unsatisfactoriness  of  its  operation,  all  concur, 


THE  STATE  JUDICIARY  327 

as  much  as  in  any  requirement  that  could  be  devised,  to 
make  the  civil  jury  system  inefficient  and  unpopular.  Sev- 
eral thoughtful  writers  are  to-day  contending  that  the  entire 
jury  system  be  abolished  in  civil  cases,  as  unsuited  to  modern 
conditions.  In  several  States  statutory  provisions  have  been 
enacted  discouraging  jury  trials  and  accustoming  the  people 
to  do  without  them;  and  many  writers  on  the  subject  have 
pointed  out  the  great  danger  to  the  maintenance  of  the 
civil  jury  system  resulting  from  the  blind  adherence  to  this 
absurd  rule  of  unanimity.  Referring  to  this  subject,  the 
distinguished  Dr.  Leiber  says : 

It  is  by  no  means  certain,  that  without  some  change  in  this  matter 
of  unanimity  ...  the  right  of  trial  by  jury,  one  of  the  abut- 
ments on  which  the  arch  of  civil  liberty  rests,  can  be  prevented  from 
giving  away  in  the  course  of  time." 

The  abolition  of  the  unanimity  rule  is  often  opposed  by 
those  who  assume  that  they  cannot  get  justice  before  any 
jury,  and  that,  when  they  are  obliged  to  go  before  such  a 
tribunal,  they  can  only  rely  upon  the  one  righteous  man  in 
Sodom  to  save  them.  The  whole  opposition  to  the  majority 
rule  on  a  jury  rests  upon  the  hypothesis  that,  in  such  bodies, 
virtue  and  intelligence  are  always  in  the  minority;  but  this 
proposition  cannot  be  admitted.  It  is  certainly  true  that 
in  some  cases  the  minority  will  be  found  to  be  right  and 
the  majority  wrong;  but  with  juries,  as  with  all  other 
deliberative  bodies,  the  rule  is,  that  the  majority,  especially 
if  a  substantial  majority,  will  be  right  and  the  minority 
wrong. 

It  is  to  the  interest  of  the  Commonwealth  that  there  be 
an  end  to  litigation.  Instead  of  having  causes  kept  upon 
the  docket,  and  tried,  retried  and  tried  again,  thus  keeping 
alive  and  strengthening  neighborhood  feuds,  exhausting  the 
litigants  with  expense,  and  burdening  the  people  with  double 
and  triple  jury  service,  it  were  much  better  that  some  cases 
should  be  decided  wrongly,  for  ofttimes  any  decision  is  bet- 
ter than  no  decision  at  all. 

Should  the  error  in  the  verdict  be  glaring,  it  can  be  set1 


328  READINGS  IN  CIVIL  GOVERNMENT 

aside  by  the  judge  and  corrected  as  is  done  now;  and  trial 
lawyers,  instead  of  satisfying  themselves,  as  is  often  done, 
with  playing  upon  the  prejudices  of  one  or  more  jurors,  in 
order  to  obtain  a  hung  jury,  will  be  obliged  to  address 
themselves  to  the  more  serious  task  of  convincing  the  majority 
of  the  jurors  in  order  to  obtain  a  verdict. 

One  of  the  common  arguments  in  favor  of  the  unanimity 
rule,  is  that  it  compels  the  jury  to  discuss  the  case  and  con- 
sider it  more  carefully,  by  reason  of  the  length  of  time 
required  to  obtain  unanimity;  but,  without  admitting  the 
sufficiency  of  this  reasoning,  the  same  end  is  fully  accom- 
plished in  those  States  where  the  unanimity  rule  has  been 
abandoned,  by  the  simple  requirements  that  a  majority 
verdict  cannot  be  rendered  upon  less  than  four  or  six  hours' 
consideration.  If,  after  six  hours'  discussion,  neither  party 
in  the  jury  can  convince  the  other,  it  is  reasonably  certain 
that  they  could  never  really  agree.  The  question  then  arises, 
whether  the  law  should  attempt  to  force  ju^rs  into  a 
verdict  against  their  judgment  and  conscience,  or  else  have 
a  miscarriage  of  justice — a  futile  attempt  by  the  litigants  to 
have  their  dispute  legally  decided — or  whether  it  should  be 
conceded  that,  with  a  jury,  as  with  every  other  known 
tribunal,  a  majority,  especially  if  a  substantial  one,  should 
decide  the  case.  It  would  seem  that  this  should  not  be  a 
difficult  question  to  solve. 

65.   CRIMINAL  PROCEDURE  IN  THE  UNITED  STATES  AND  ENGLAND. 

That  many  of  the  delays  and  mistrials  which  occur  in  administer- 
ing criminal  justice  in  the  United  States  are  unnecessary  is  shown 
by  Professor  J.  W.  Garner  in  the  following  comparison  with  results 
attained  and  methods  followed  in  England:  [1909]. 

If  we  compare  American  methods  of  criminal  procedure 
with  those  of  England  and  the  Continent  we  cannot  fail  to 
be  impressed  with  the  fact  that  the  chief  causes  of  the  wide- 
spread popular  dissatisfaction  with  our  own  system  are  its 
cumbersomeness,  the  slowness  with  which  criminal  trials  are 
started  and  expedited,  the  importance  which  is  attached  to 


THE  STATE  JUDICIARY  329 

technicalities  and  mere  matters  of  practice  at  the  expense 
of  substantive  justice  and  an  altogether  too  wide  latitude  of 
appeal.  Notwithstanding  the  constitutional  guarantee  of 
"speedy"  trials,  the  dockets  of  the  criminal  courts  nearly 
everywhere  are  so  congested  with  cases  that  trials  cannot  be 
reached  for  months  and  sometimes  for  years.  It  was  put  in 
evidence  before  the  New  York  State  Commission  on  the  Law's 
Delay  in  1903  that  on  the  1st  of  November  of  that  year  there 
were  10,000  untried  jury  cases  on  the  calendar  of  the  first 
department  of  the  supreme  court  of  that  state.  The  court 
was  then  three  years  behind  with  its  work  and  it  required 
from  one  and  a  half  to  two  years  to  reach  a  jury  trial  in 
Kings  County.  The  clerk  of  the  superior  court  of  Cook 
County,  Illinois,  informed  the  writer  in  April,  1907,  that 
there  were  then  pending  12,653  cases  before  the  superior 
court  and  18,828  cases  before  the  circuit  court,  the  former 
being  more  than  a  year  behind  with  its  business  and  the 
latter  about  two  years  in  arrears. 

The  Iroquois  Theater  fire  case  in  Chicago  may  be  cited  as 
a  typical  instance  of  the  delays  in  bringing  cases  to  trial. 
The  burning  of  the  theater,  which  resulted  in  the  loss  of 
nearly  six  hundred  lives,  occurred  on  December  30,  1903. 
Two  months  thereafter  the  owner  of  the  theater  was  indicted. 
The  indictment  was  held  under  advisement  for  a  period  of 
three  months  by  the  court  and  finally  quashed.  On  March 
4,  1905,  a  new  indictment  was  found  and  was  held  by  the 
judge  for  a  period  of  seven  months  and  a  half.  Finally, 
in  March,  1907,  three  years  and  four  months  after  the  com- 
mission of  the  offence  charged,  the  case  was  brought  to  trial 
only  to  result  in  the  release  of  the  accused  on  a  technicality. 
Such  delays  are  not  only  a  wrong  to  the  accused,  if  he  be 
innocent,  but  they  always  work  an  injury  to  society  and  often 
defeat  the  ends  of  justice  itself.  No  deterrent  is  so  powerful 
as  swift  and  certain  punishment.  Long  lapse  of  time  be- 
tween the  commission  of  an  offence  and  the  trial  induces  pity, 
causes  loss  of  interest  on  the  part  of  the  public  prosecutor 
and  not  infrequently  renders  conviction  difficult  if  not 


330  READINGS  IN  CIVIL  GOVERNMENT 

impossible  by  the  death  of  important  witnesses,  their  removal 
from  the  jurisdiction  of  the  court  or  from  lapses  of  memory 
regarding  material  facts  connected  with  the  crime.  .  .  . 

One  of  the  most  prolific  sources  of  popular  dissatisfaction 
with  our  methods  of  administering  criminal  justice  is  the 
practice  of  the  appellate  tribunals  of  reversing  the  decisions 
of  trial  courts  upon  technical  errors  and  granting  new  trials 
to  criminals  who  have  already  been  convicted.  Justice 
Brown  hardly  exaggerated  the  facts  when,  criticising  the 
American  practice  of  allowing  appeals,  almost  as  a  matter  of 
course,  he  recently  remarked  that  the  rendering  of  the  ver- 
dict was  only  the  beginning  of  the  trial  in  serious  criminal 
cases.  The  supreme  court  reports  of  all  our  states  furnish 
ample  evidence  of  the  truth  of  Justice  Brown's  statement. 
We  have  reached  a  point  where  it  is  almost  impossible  to 
punish  a  criminal  after  a  single  trial,  especially  if  he  can 
command  the  service  of  able  and  ingenious  counsel.  Our 
judicial  annals  show  that  a  large  proportion  of  the  criminals 
of  this  country  who  have  been  punished  in  recent  years  have 
had  the  benefit  of  at  least  two  trials  and  convictions.  It  has 
been  abundantly  established  by  experience  that  postpone- 
ments and  new  trials  more  often  result  in  defeating  justice 
than  in  promoting  it.  It  is  well  known  that  after  the  lapse 
of  a  certain  period  it  is  almost  impossible  to  convict  the 
worst  criminal.  After  the  first  trial  the  very  stars  in  their 
courses  seem  to  fight  for  him.  Public  interest  languishes  or 
becomes  indifferent,  the  pressure  of  outraged  opinion  which 
operates  as  a  powerful  stimulus  to  the  prosecuting  attorney 
ceases,  witnesses  die  or  forget  material  facts,  the  sense  of 
responsibility  on  the  part  of  jurors  diminishes  as  the  memory 
of  the  crime  recedes  in  the  past  and  the  case  is  often  aban- 
doned or  the  offender  acquitted  because  public  sentiment  no 
longer  seems  to  demand  his  punishment. 

The  doctrine  of  some  tribunals  that  error  in  the  procedure 
of  the  trial  court,  however  trifling  and  immaterial,  is  pre- 
sumed to  affect  prejudicially  the  rights  of  the  accused  and 
that  consequently  wherever  such  error  is  found  it  is  the 


THE  STATE  JUDICIARY  331 

right  and  duty  of  appellate  courts  to  grant  new  trials,  is 
doing  more  than  anything  else  to  multiply  appeals,  defeat 
the  administration  of  justice  and  impair  public  confidence 
in  the  efficiency  of  the  courts.  Some  of  the  instances  of 
reversals  on  account  of  presumed  prejudice  arising  from 
technical  errors  in  the  procedure  of  the  trial  court  would, 
says  Wigmore,  one  of  the  highest  authorities  on  the  law  of 
evidence,  seem  incredible  even  in  the  justice  of  a  tribe  of 
fetish-worshipping  Africans.  Some  of  the  trivial  reasons 
that  have  actually  been  assigned  by  the  appellate  courts  of 
our  states  for  allowing  new  trials  are  the  following:  because 
the  name  of  the  State  was  abbreviated  in  the  indictment; 
because  the  word  "feloniously"  was  omitted  from  the  indict- 
ment, although  the  evidence  showed  that  the  crime  was  com- 
mitted with  felonious  intent;  because  the  indictment  merely 
stated  that  the  victim  "did  then  die"  instead  of  stating  that 
he  "did  then  and  there  die";  because  the  word  "mali- 
ciously" was  omitted  from  an  indictment  charging  the  accused 
with  arson,  although  it  stated  that  the  offence  was  committed 
"wilfully  and  feloniously";  because  "the  indictment  charged 
the  defendant  with  "killing  and  murdering"  instead  of  stat- 
ing that  he  "did  kill  and  murder"  (the  word  "did"  being 
held  essential  to  a  valid  indictment)  ;  because  the  indictment 
charged  the  defendant  with  intent  to  "kill  or  injure" 
instead  of  to  "kill  and  injure";  because  the  words  "person 
or  human  being"  were  omitted  from  the  indictment.  .  .  . 
In  England  until  1907,  when  a  court  of  criminal  appeal 
was  created,  no  right  of  appeal  in  criminal  cases  was  allowed, 
though,  of  course,  the  decision  of  a  lower  court  could  be 
reviewed  upon  writs  of  error.  The  Home  Office  was  expected 
to  correct  judicial  wrong  in  criminal  cases  by  means  of 
pardons  granted  to  persons  unjustly  convicted.  The  advan- 
tage of  the  right  of  appeal  in  criminal  cases  for  a  long  time 
seemed  doubtful  to  the  English,  and  they  were  led  to  intro- 
duce it  only  after  a  popular  clamor  following  the  terrible  mis- 
carriage of  justice  in  the  case  of  the  unfortunate  Adolf  Beck 
in  1904.  The  opponents  of  appeal  pointed  out  that  such  a 


332  READINGS  IN  CIVIL  GOVERNMENT 

system  was  expensive,  cumbrous,  dilatory  and  ineffective; 
asserted  that  it  would  substitute  the  judgment  of  a  court  with 
only  the  record  before  it  for  the  judgment  of  twelve  men 
who  meet  the  witnesses  face  to  face  and  hear  the  testimony 
from  their  own  lips,  and  declared  that  it  would  tend  greatly 
to  diminish  the  sense  of  responsibility  of  jurors,  since  their 
verdict  would  not  necessarily  be  final. 

This  view  has  not  been  without  able  supporters  in  America, 
though  as  yet  the  number  has  been  small.  President  Taft, 
for  example,  in  an  address  before  the  Yale  Law  School  in 
1905  asserted  that:  "If  laws  could  be  passed,  either  abolish- 
ing the  right  of  criminal  appeal  and  leaving  to  the  pardon- 
ing power,  as  in  England,  the  correction  of  judicial  wrong; 
or,  instead  of  that,  if  appeals  must  be  allowed,  then  if  a  pro- 
vision of  law  could  be  enacted  by  which  no  judgment  of  the 
court  below  should  be  reversed  except  for  an  error  which  the 
court,  after  reading  the  entire  evidence  can  affirmatively 
say  would  have  led  to  a  different  verdict,  ninety-nine 
reversals  out  of  one  hundred  under  the  present  system  would 
be  avoided. " 

In  England  the  judge  occupies  a  commanding  position  in 
the  trial  which  is  wholly  denied  to  him  in  America.  He  is 
not  only  vested  with  large  power  in  the  selection  of  juries, 
but  is  allowed  to  review  and  sum  up  the  evidence,  sift  out 
the  immaterial  from  the  material,  put  the  evidence  before  the 
jury  in  intelligible  and  coherent  form,  and,  if  the  jurors 
have  been  confused  and  misled  by  the  arguments  of  counsel, 
to  set  them  right  before  giving  the  case  into  their  hands. 
There  is  really  no  danger  in  this  principle,  since  it  does  not 
in  the  slightest  degree  take  away  from  the  jury  its  power  to 
determine  the  question  of  fact,  but  only  helps  it  toward 
an  intelligent  decision  by  a  sifting  and  clearing-up  process. 
In  America,  as  Judge  Grosscup  has  remarked,  the  judge  is 
practically  not  allowed  to  take  part  in  the  trial  of  criminal 
cases.  His  position  is  that  of  an  umpire  or  a  moderator 
rather  than  a  judge  in  any  real  sense.  The  truth  is,  the 
Americans  have  gone  to  the  extreme  in  exalting  the  function 


THE  STATE  JUDICIARY  333 

of  the  jury  at  the  expense  of  the  judge.  There  is  still  a 
wide-spread  disposition  as  in  Blackstone's  day  to  worship  it 
as  a  fetish  and  to  look  upon  the  judge  with  a  sort  of  supersti- 
tious fear,  though  in  nearly  all  the  states  the  judges  are 
popularly  elected  for  comparatively  short  terms.  Many 
eminent  American  jurists,  among  them  President  Taft,  have 
complained  of  the  position  of  impotency  to  which  American 
judges  have  been  reduced  and  have  urged  the  restoration  to 
them  of  some  of  the  powers  which  they  enjoyed  originally  at 
common  law  and  which  in  England  they  enjoy  to-day. 

In  other  respects  the  English  methods  of  administering 
criminal  justice  are  acknowledged  to  be  decidedly  in  advance 
of  ours.  The  New  York  State  Commission  on  the  Law 's  Delay 
reported  in  1903  that  it  was  "profoundly  impressed"  with  the 
English  system  of  procedure  and  asserted  that  the  English 
courts  from  having  been  the  most  dilatory  in  the  world  have 
become  in  recent  years  the  most  expeditious.  The  Commis- 
sion further  declared  that  we  * '  could  not  do  better  than  adopt 
some  of  these  modern  methods  of  procedure  which  have  been 
so  thoroughly  tested  in  England  and  have  proved  to  work 
so  well."  The  difference  between  the  efficiency  of  the  Eng- 
lish and  American  methods  of  procedure  is  well  illustrated 
by  the  Rayner  and  Thaw  trials.  In  each  case  the  facts  were 
very  similar  and  the  plea  was  the  same,  namely,  insanity.  In 
the  Rayner  case  the  trial  was  started  within  a  few  days  after 
the  offence  was  committed,  the  jury  was  selected  within  an 
hour's  time,  and  the  trial  was  completed  and  the  murderer  con- 
victed before  the  end  of  the  first  day.  Thaw  was  brought  to 
trial  months  after  his  crime  was  committed,  and  he  was  finally 
sent  to  an  insane  asylum  after  two  trials  which  dragged 
through  a  period  of  a  year  and  a  half.  Had  he  been  con- 
victed, appeals,  reversals  and  new  trials  would  have  fol- 
lowed, and  ultimately  the  case  would  in  all  probability  have 
been  carried  to  the  United  States  Supreme  Court.  In  any 
case  there  is  no  reason  for  believing  that  he  would  have  been 
punished,  if  at  all,  within  at  least  three  years  after  com- 
mitting his  crime. 


334  READINGS  IN  CIVIL  GOVERNMENT 

The  English  Master  of  Judicial  Statistics  in  the  letter  to 
Hon.  Joseph  H.  Choate  already  referred  to,  describing  the 
promptness  and  despatch  with  which  trials  are  conducted  in 
England,  stated  that  twenty-three  judges  handle  all  the 
litigation  of  England  and  Wales  with  a  population  of  about 
32,500,000  and  that  they  actually  try  and  determine  an 
average  of  5,000  cases  a  year,  or  more  than  twice  as  many 
a*  are  tried  by  forty-three  judges  in  New  York  and  Kings 
Counties.  As  I  write,  July  1st,  1909,  there  lies  before  me  a 
copy  of  news  despatch  which  states  that  the  English  Court 
of  Appeals  has  decided  practically  all  the  appeals  that  were 
on  the  docket  at  the  beginning  of  the  present  term  and  that 
it  is  now  disposing  of  cases  that  have  been  down  for  hearing 
less  than  five  weeks.  This  seems  wonderful  indeed  to  us 
who  are  accustomed  to  a  system  under  which  our  appellate 
courts  are  usually  from  one  to  three  years  behind  with  their 
dockets. 

There  is  no  longer  any  excuse  for  the  retention  of  our 
present  system  in  the  form  which  it  has  come  to  possess.  It 
is  totally  inconsistent  with  the  standard  of  civilization  which 
we  have  attained  in  other  fields,  and  especially  with  our 
reputation  for  doing  most  things  more  rapidly  than  any  other 
people.  It  is  refreshing  to  note  that  the  most  candid  mem- 
bers of  the  bench  and  bar  are  beginning  to  take  a  more 
common  sense  view  of  the  purpose  of  a  judicial  trial  and  are 
joining  in  the  agitation  for  reform. 


ADDITIONAL  READINGS 

1 — Justice  and  Police  Courts,  Fairlie,  J.  A.,  Local  Govern- 
ment, 95-118. 

2 — The  Laws  Delays,  Baldwin,  S.  E.,  The  American  Judiciary, 
365-73. 

3— The  Organization  of  the  Courts  of  the  States,  Ibid.,  125- 
36. 

4 — The  Trials  of  Jury  Trials,  Coxe,  A.  C.y  Columbia  Law  Re- 
view, I,  286-97. 


THE  STATE  JUDICIARY  335 

5 — Proposed  Reform  in  Judicial  Procedure,  Deemer,  H.  E., 
Proceedings  of  the  American  Political  Science  Associa- 
tion, IV,  246-59. 

6 — The  Administration  of  Justice,  Taft,  W.  H.,  Green  Bag, 
XX,  441-7. 


CHAPTER  XV 
MUNICIPAL  GOVERNMENT 

66.    HOME  RULE   FOR   CITIES. 

No  branch  of  American  politics  has  been  more  severely  or  more 
deservedly  criticised  than  the  government  of  our  cities.  At  the  same 
time  no  subject  has  been  studied  and  discussed  more  thoroughly  dur- 
ing the  last  twenty  years  and  in  no  direction  have  there  been  more 
hopeful  signs  of  improvement.  One  of  the  besetting  evils  of  city 
government  has  been  its  slavish  subjection  to  the  government  of  the 
State.  In  the  following  selection  Mr.  E.  P.  Oberholtzer  points  out 
the  evils  of  too  close  State  supervision  and  outlines  the  movement 
toward  municipal  Home  Rule  up  to  1903: 

Another  movement  which  is  meant  to  prevent  confusion, 
simplify  the  processes  of  government,  and  drive  corruption 
from  its  sheltered  haunts  is  the  emancipation  of  cities  from  the 
State  legislatures.  I  do  not  remember  elsewhere  to  have  read 
so  intelligible  a  discussion  of  the  incongruities  and  anomalies 
in  our  present  system  of  making  local  boundaries,  as  that  by 
Professor  Patten.  Lines  have  been  drawn  arbitrarily  without 
the  slightest  regard  for  the  temper  or  character  of  the  popula- 
tion. Great  industrial  and  maritime  cities  are  thrown  into 
agricultural  States.  Half  the  population  may  be  settled  per- 
haps on  a  few  square  miles  of  space  in  one  corner  of  the  State. 
With  wholly  different  interests  these  two  sections  of  the  people, 
urban  and  rural,  come  together  at  the  State  capital,  and 
in  consequence  the  results  are  mutually  disadvantageous. 
Neither  section  understands  the  needs  or  wishes  of  the  other, 
and  the  effect  is  weakening,  corrupting,  and  unwholesome  for 
the  political  life  of  both  the  city  and  the  State.  How  by  prac- 
tical means  they  are  to  be  separated,  now  that  they  are  joined 

336 


MUNICIPAL  GOVERNMENT  337 

together,  is  a  difficult  question  to  decide.  The  State  was  pres- 
ent before  the  city.  The  city  is  an  afterthought,  and  an  after- 
growth. It  has  developed  from  the  village,  and  while  there 
was  no  little  political  friction  between  New  York  and  Phila- 
delphia and  the  rural  counties  a  century  ago,  the  understand- 
ing is  infinitely  less  to-day  since  the  cities  have  grown  to  their 
present  proportions. 

The  State  legislatures  are  in  serious  decline.     They  have 
lost  much  of  their  former  title  to  public  respect,  and  their 
powers  have  been  curtailed  in  a  variety  of  ways  by  the  Consti- 
tutional Convention.     Not  a  few  of  their  ills  and  misfortunes 
spring  from  the  lack  of  homogeneity  in  the  population  of  the 
modern  State.     It  is  a  grouping  of  diverse  and  discordant 
elements  which  work  at  cross  purposes  with  each  other.    A 
partisan  majority  of  one  kind  in  the  rural  counties  confronts 
a  majority  of  a  different  kind  in  the  city,  and  thus  there  is 
cordial  and  direct  invitation  of  trading,  bribery, ' '  log-rolling, ' ' 
"jamming,"  and  other  evils,  now  very  familiar  at  the  State 
capitals.     The  State  legislatures  have  made  themselves  more 
and  more  meddlesome  in  the  affairs  of  the  municipalities.     To 
settle  some  grudge,  to  "strike"  vested  wealth  for  large  sums 
by  means  of  blackmail,  to  reward  party  men  for  some  political 
service,  the  legislature,  without  warning,  passes  a  bill  chang- 
ing the  legal  or  institutional  system  of  a  city.     The  municipal 
government  is  a  derivative  creation — it  is  the  absolute  creature 
of  the  State — and  the  legislature,  except  as  it  has  been  limited 
by  the  Constitutional  Convention,  makes  laws  at  will  in  refer- 
ence to  cities.     It  grants  the  charter,  amends  the  charter,  and 
by  "special"  and  "general"  laws  is  almost  everywhere  free 
at  each  session  to  make,  unmake,  or  remake  the  government 
of  any  municipality  within  the  State,  no  matter  what  its  wealth 
or  size.     That  these  arbitrary  and  evil  attacks  upon  the  rights 
of  great  cities  are  contrary  to  public  policy  needs  no  particu- 
lar demonstration.     The  disposition  on  the  part  of  the  legis- 
latures, for  no  honorable  or  necessary  cause,  suddenly  to  with- 
draw grants  which  they  earlier  had  made  and  to  abuse  the 
privileges  they  enjoy  in  superintending  the  government  of 


338  READINGS  IN  CIVIL  GOVERNMENT 

cities,  has  gone  far  to  condemn  absolutely  the  existing  relation- 
ship and  induce  us  to  seek  a  safer  system.  Home  rule  for 
cities  has  become  an  imperative  demand  in  all  parts  of  the 
Union,  and  as  a  remedy  for  a  certain  class  of  ills,  it  is  full  of 
promise  for  the  American  municipality.  It  is  not  immedi- 
ately practicable  to  separate  the  city  from  the  State  and  let 
it  stand  in  independent  and  direct  relationship  with  the  na- 
tional government.  It  is  considered  feasible,  however,  in  some 
States,  to  attempt  to  divorce  the  city  and  the  legislature,  a 
movement  which  while  still  rather  new,  has  met  with  marked 
public  favor.  The  elimination  of  the  legislature  closes  at 
least  one  source  of  corrupt  influence  and  dishonesty.  If  there 
is  to  be  corruption,  let  it  originate  at  home  in  the  bosom  of 
the  people  who  are  most  concerned  about  it.  The  sage  Ameri- 
can politician,  who,  in  a  partisan  controversy  over  a  seat,  was 
informed  that  both  contestants  were  "rascals,"  and  who 
promptly  inquired  ' '  which  is  our  rascal  ? ' '  betrayed  a  prefer- 
ence that  may  profitably  be  recognized  in  city  government. 
With  home  rule  we  need  patronize  only  our  own  rascals,  which 
is  a  blessing  worthy  of  note. 

•  The  only  weapon  with  which  to  combat  effectively  the  State 
legislature  is  the  Constitutional  Convention.  It  is  true  the 
legislature,  in  a  season  of  virtue,  may  resign  its  powers  over 
the  cities  by  statute ;  it  may  agree  as  in  Louisiana  to  let  the 
people  frame  their  own  charters,  and  amend  those  instru- 
ments at  their  own  pleasure.  When  a  charter  is  submitted  to 
the  citizens,  and  is  adopted  by  a  majority  vote,  it  gains  bind- 
ing force  in  any  town  or  city,  except  New  Orleans,  which  is 
expressly  excepted  from  the  provisions  of  the  law.  Such  a 
grant,  however,  is  wholly  voluntary  with  the  legislature,  and 
the  statute  may  at  any  session  be  repealed  or  changed.  In 
many  States  the  legislature  without  formulating  its  design  in 
general  statutory  terms,  submits  local  government  acts  and 
charters  for  the  approval  or  rejection  of  the  people  of  the  dis- 
tricts to  which  they  relate.  Such  a  practice,  while  it  is  en- 
tirely praiseworthy,  is  likely  not  to  prevail  in  regard  to  large 
cities.  In  the  best  case  the  legislature  obeys  its  own  will  and 


MUNICIPAL  GOVERNMENT  339 

whim — only  its  honor  stands  between  to  protect  the  cities,  and 
it  is  this  that  has  sometimes  failed  us. 

It  is  plain  that  the  city  needs  a  direct  constitutional  pledge 
and  guarantee.  Such  a  guarantee  it  secured  in  Missouri,  in 
1875,  when  a  new  constitution  was  adopted  in  that  State,  arid 
a  scheme  was  devised  for  freeing  St.  Louis  from  the  debauch- 
ing influence  of  the  legislature.  The  convention  took  a  radi- 
cal step.  It  introduced  an  entirely  new  principle  into  mu- 
nicipal government  in  America,  and  decided  that  the  city 
henceforward  might,  free  of  the  legislature 's  interferences  and 
restraints,  frame  its  own  charter.  It  might  elect  thirteen  citi- 
zens to  a  Board  of  Freeholders,  submit  the  charter  which  they 
should  prepare  to  the  people  of  St.  Louis,  when,  if  the  latter 
approve,  the  instrument  would  become  the  supreme  law  of  the 
city.  On  the  initiation  of  the  municipal  assembly,  the  char- 
ter might  later  be  amended  with  the  assent  of  the  people,  and 
without  consulting  the  legislature.  A  similar  constitutional 
provision  granting  home  rule  to  all  the  cities  of  Missouri, 
which  should  have  or  should  later  attain  a  population  of  at 
least  one  hundred  thousand,  led  to  Kansas  City's  adopting  a 
Freeholders'  Charter  in  1889. 

Meanwhile  the  convention  which  met  in  California,  in  1879, 
to  prepare  a  new  constitution  for  that  State,  sought  to  extend 
the  same  privileges  to  San  Francisco;  and  a  provision  was 
made  permitting  any  city  in  California  of  more  than  one 
hundred  thousand  inhabitants  to  elect  a  board  of  fifteen  free- 
holders, and  adopt  its  own  charter.  California,  unlike  Mis- 
souri, must  submit  her  charters  to  the  legislature,  after  they 
have  been  approved  by  the  people.  The  legislature,  however, 
must  accept  or  reject  them  "as  a  whole,  being  without  power 
of  alteration  or  amendment/'  In  1886,  by  an  amendment 
to  the  constitution  of  California  the  limit  of  population  was 
reduced  from  one  hundred  thousand  to  ten  thousand,  and  in 
1890  it  was  further  reduced  to  three  thousand,  five  hundred, 
so  that  all  the  cities  of  the  State  may  to-day  have  home  rule 
if  they  care  to  avail  themselves  of  the  opportunity  to  establish 
their  own  forms  of  government.  Los  Angeles,  Oakland,  Stock- 


340  READINGS  IN  CIVIL  GOVERNMENT 

ton,  San  Diego,  Sacramento,  Grass  Valley,  Napa,  Eureka, 
Berkeley,  San  Jose,  Vallejo,  and  Santa  Barbara,  followed  each 
other  rapidly  in  adopting  Freeholders'  Charters.  San  Fran- 
cisco,  which  the  provision  was  designed  especially  to  benefit, 
did  not  succeed  in  getting  free  from  the  State  legislature  until 
1899.  Again  and  again,  freeholders  were  chosen  to  frame 
a  charter  for  the  city,  but  because  of  the  relentless  antagonism 
of  a  political  clique  to  this  reform,  it  was  only  at  the  fifth 
election,  eighteen  years  after  the  first  attempt  was  put  forth, 
that  a  majority  vote  of  the  people  was  obtained  in  favor  of  a 
new  body  of  fundamental  law  for  San  Francisco.  These  five 
elections  were  held  in  1880,  1883, 1887, 1896  and  1898.  While 
the  legislature  in  California  may  at  its  pleasure  refuse  to 
ratify  a  city-made  charter,  in  no  case  has  it  yet  withheld  its 
approval. 

The  State  of  Washington,  when  it  entered  the  Union,  in 
1889,  brought  with  it  a  constitutional  provision  permitting 
cities  of  a  population  of  twenty  thousand  or  more  to  frame 
their  own  charters.  The  terms  of  the  grant  were  practically 
the  same  as  in  California,  except  that  the  ratifying  vote  of  the 
legislature  was  dispensed  with.  In  consequence  of  this  pro- 
vision Seattle,  Tacoma,  and  Spokane  now  have  Freeholders' 
Charters. 

The  fourth  State  to  adopt  the  system  was  Minnesota,  which, 
by  constitutional  amendments  approved  in  1896  and  1898, 
worked  out  a  modified  plan  of  its  own.  In  Minnesota  there  is 
no  specified  minimum  limit  of  population  for  cities  which  may 
avail  themselves  of  the  right  to  the  Freeholders'  Charter.  All 
cities  and  villages  possess  equal  privileges.  The  Board  of 
Freeholders  is  a  permanently  constituted  body  not  selected 
by  the  people  for  a  definite  service,  as  in  the  other  States,  but 
appointed  by  the  district  judges  for  a  term  of  six  years. 

The  only  obstacle  which  has  been  met  with  in  the  pathway 
of  the  Freeholders'  Charter  is  a  serious  conflict  of  authority 
between  the  new  semi-independent  city  and  the  legislature. 
The  State  constitution  declared  that  the  city  shall  frame  its 
own  charter,  but  manifestly  it  may  not  secede  from  the  State 


MUNICIPAL  GOVERNMENT  341 

or  make  rules  or  regulations  for  its  own  government,  which 
place  it  outside  the  pale  of  control  of  the  central  state  agencies, 
chief  of  which  is  the  legislature.  In  Missouri  it  is  specified 
that  the  "charter  and  amendments  shall  always  be  in  harmony 
with  and -subject  to  the  constitution  and  laws  of  the  State," 
while  in  California  and  Washington  they  must  be  '  *  consistent 
with  and  subject  to  the  constitution  and  laws."  The  legisla- 
ture, although  in  many  States  forbidden  to  pass  special  laws 
on  a  great  variety  of  subjects,  including  city  government,  be- 
cause of  its  reckless  abuse  of  the  privilege,  still  finds  a  large 
field  for  its  activity  in  the  enactment  of  general  laws.  It  re- 
sorts to  many  improper  subterfuges.  It  constructs  general 
"classes"  in  which  but  one  city  or  county  is  a  member.  In 
California  fifty-seven  counties  are  divided  into  fifty-three 
classes.  The  opportunity  for  evil  is  as  open  and  as  great  as 
before,  and,  whether  legislation  is  nominally  general  or  special, 
it  is  clear  from  the  judicial  opinions  in  Missouri,  California, 
and  Washington,  that  the  legislature  must  and  will  exercise 
supervisory  authority  over  all  the  territory  under  its  jurisdic- 
tion in  such  matters  as  schools,  streets,  and  the  police  system, 
and  I  am  not  convinced  that  any  part  of  the  State  should  be 
released  from  a  central  control  on  these  subjects.  The  cities 
which  have  adopted  Freeholders'  Charters  are  not  enjoying 
these  extensive  liberties.  In  many  cases  the  constitutional  pur- 
pose and  intent  of  the  reform  have  been  violated  flagrantly 
and  the  city  is  as  completely  as  before  at  the  legislature's 
mercy;  for  a  charter,  no  matter  how  near  at  home  its  origin, 
which  may  be  changed  at  will  by  an  outside  authority,  is, 
when  that  outside  authority  is  evilly  disposed,  not  sensibly 
better  than  any  other  charter.  Minnesota,  taking  to  heart  the 
lessons  learned  by  Missouri,  California,  and  Washington,  has 
not  deceived  herself  with  dreams  of  free  cities.  While  it  is 
specified  that  the  charters  in  that  State  shall  be  "in  harmony 
with  and  subject  to  the  constitution  and  laws  of  the  State," 
it  is  also  provided  that  the  cities  shall  be  divided  into  four 
classes,  for  which  the  legislature  is  expressly  authorized  to 
enact  general  laws,  "paramount  while  in  force  to  the  pro- 


342  READINGS  IN  CIVIL  GOVERNMENT 

visions  relating  to  the  same  matter  included  in  the  local  char- 
ter." In  no  case  shall  a  local  charter  or  ordinance  "super- 
sede any  general  law  of  the  State  defining  or  punishing  crimes 
or  misdemeanors." 

But  of  all  the  devices  proposed  as  a  means  of  protecting 
American  cities  from  the  undue  interference  of  the  legislature, 
the  system  recently  adopted  in  New  York  State,  is  most  likely 
to  commend  itself  to  careful  students  of  municipal  govern- 
ment. Even  under  Minnesota's  modified  form  of  the  Free- 
holders' Charter,  there  is  still  no  room  for  special  legislation. 
As  universal  as  the  prohibition  of  this  kind  of  legislation  has 
become  in  the  past  quarter  of  a  century,  we  are  beginning  to 
understand  that,  in  the  very  nature  of  the  case,  special  laws 
for  localities  are  sometimes  necessary.  There  are  matters  of 
local  administration  which  cannot  satisfactorily  be  brought 
under  a  general  head.  To  find  a  system  harmonizing  this 
idea  with  the  idea  of  home  rule  was  reserved  for  New  York. 
In  that  State,  since  the  constitution  was  revised  in  1894,  the 
enactment  of  special  laws,  relative  to  cities  is  permitted  by 
the  legislature,  but  these  laws  as  bills  must  be  submitted  to  the 
municipal  authorities  of  the  community  to  which  they  relate. 
The  mayor  of  the  city  receives  the  bill  and  appoints  a  time  for 
a  public  hearing  when  objections  to  its  passage  may  be  pre- 
sented. He  may  veto  the  measure,  although  the  legislature 
may  pass  it  over  his  veto,  in  which  case  it  is  expressly  de- 
clared in  its  title  for  the  information  of  all  whom  it  may  con- 
cern that  it  was  ' '  passed  without  the  acceptance  of  the  city. ' ' 
This  constitutional  provision  legally  opens  the  way  to  special 
legislation,  while  duly  regarding  the  rights  of  the  munici- 
pality. It  is  required  that  all  special  acts  of  this  kind  shall 
be  referred  to  the,  regularly  delegated  officials  within  each  city, 
whose  government  is  to  be  changed ;  the  constitution,  however, 
recognizes  the  supreme  authority  of  the  legislature,  the  gov- 
ernor, and  the  other  agencies,  to  which  the  general  welfare  has 
been  committed  by  the  sovereign  people,  when  it  provides  a 
method  for  the  enactment  of  the  law  in  spite  of  possible  petty 
local  hostility.  Thus,  while  some  difficulties  are  put  in  the 


MUNICIPAL  GOVERNMENT  343 

way  of  special  legislation  for  cities,  it  is  not  made  wholly  im- 
possible. The  reference  of  the  bill  to  the  locality  affected 
affords  an  opportunity  for  public  discussion  and  should  the 
measure  be  unworthy,  it  is  reasonable  to  suppose  that  it  could 
not  be  easily  passed  a  second  time,  in  the  face  of  local  disap- 
proval. Whatever  the  final  outcome  of  this  interesting  con- 
test between  the  city  and  the  State,  it  is  plain  that  we  are 
constantly  moving  toward  results  which  promise  soon  to  be 
more  definite,  and  we  may  hope  more  satisfactory. 

Our  better  judgment  tells  us,  and  theory  and  experience 
enforce  us  in  the  opinion  that  the  city,  however  great  a  de- 
gree of  independence  we  may  wish  it  to  possess,  cannot  really 
be  free  of  the  legislature's  supervising  control.  Many  sub- 
jects must  still  be  regulated  by  uniform  laws,  and  political 
opinion  has  been  very  generally  on  the  side  of  the  legislature 
whenever  conflict  of  authority  has  arisen  between  the  city  and 
the  State.  While  constitutional  checks  and  restraints  upon 
the  legislature  are  deserving  of  hearty  encouragement,  when 
these  are  not  extreme  and  give  promise  of  practical  results, 
it  must  be  always  remembered  that  the  only  cure  for  the  dis- 
graceful political  ills  which  plague  our  cities  is  administrative 
agents  of  character  and  courage.  This  is  the  need  in  all 
branches  of  governments — local,  state,  and  national.  Home 
rule  will  not  be  better  than  rule  at  a  greater  distance,  if  the 
agencies  are  not  at  hand  to  make  good  government  possible. 
Paris,  Washington,  and  other  great  capitals  of  the  world, 
noted  for  the  excellence  of  their  public  service,  have  scarcely 
a  vestige  of  home  rule.  Their  affairs  are  administered  by  the 
nation.  The  people  of  the  city  are  without  care  or  responsi- 
bility concerning  the  government.  They  enjoy  the  benefits  of 
a  superb  system,  in  which  they  have  no  constructive  part. 
But,  while  it  is  good  men  who  are  the  prime  requisites  of  good 
government,  our  present  methods  are  in  general  poorly  de- 
signed to  bring  forward  such  men.  To  put  the  farms  against 
the  cities,  to  look  to  the  State  capitals  for  laws  that  will  be 
well  adapted  to  the  needs  of  the  great  populations  of  all  de- 
grees of  poverty  and  wealth,  of  all  nationalities,  and  of  the 


344  READINGS  IN  CIVIL  GOVERNMENT 

largest  variety  of  employments,  is  a  crucial  mistake.  Al- 
though our  constitutional  system  seems  to  suggest  no  ready 
form  of  relief,  some  more  rational  alignment  of  the  popula- 
tion into  harmonious  groups  is  to  many  of  us  what  "a  firm, 
wise,  manly  system  of  federal  government "  was  to  Robert 
Morris,  in  1782,  who,  in  speaking  of  such  a  government,  said, 
"It  is  what  I  once  wished,  what  I  now  hope  for,  what  I  dare 
not  expect,  but  what  I  will  not  despair  of."  Is  it  too  much 
to  expect  that  we  will,  in  the  not  too  distant  future,  have 
cities  which,  simply  organized  and  measurably  free,  will  de- 
serve their  liberties;  that  the  American  people,  developing  a 
civic  pride  and  a  sense  of  true  local  patriotism,  will  make  their 
cities  the  peers  of  the  old  Grecian  or  the  Italian  and  Hanseatic 
cities  whose  careers  were  so  brilliant  in  the  Middle  Ages? 

67.   RESULTS  OP  HOME  RULE. 

Since  the  preceding  article  was  written  the  movement  toward  mu- 
nicipal self-government  has  spread  to  other  States,  notably  Michigan 
and  Oklahoma.  That  it  has  had  a  beneficial  effect  on  city  govern- 
ment is  the  opinion  of  Mr.  M.  R.  Maltbie  expressed  in  the  following 
selection.  [1905]. 

This  scheme  for  municipal  home  rule  seems  to  satisfy  fully 
the  cities  that  are  working  under  it.  Objections  are  raised  to 
this  or  that  detail,  and  not  infrequently  some  minor  change 
is  advocated,  but  the  fundamental  principle  is  generally  satis- 
factory. The  vote  upon  amendments  to  the  constitution  has 
shown  considerable  opposition,  but  usually  less  than  one-third 
of  the  total  vote  on  the  amendments,  and  I  know  of  no  in- 
stance where  they  have  been  defeated  at  the  polls.  Gener- 
ally, the  opposition  comes  principally  from  the  rural  districts 
which  distrust  the  ability  of  the  cities  to  govern  themselves, 
are  reluctant  to  surrender  their  control  and  are  fearful  of  a 
campaign  of  retaliation.  When  once  adopted,  however,  the 
number  of  opponents  rapidly  decreases,  and  in  the  cities  them- 
selves it  is  very  small.  In  no  State  is  it  proposed  to  repeal  the 
home  rule  provision  and  to  return  to  the  lees  and  husks  of 
legislative  rule.  It  is  possible  that  the  people  are  mistaken 


MUNICIPAL  GOVERNMENT  345 

and  that  their  present  condition  is  worse  than  their  first,  but 
it  is  undisputed  that  the  cities  having  freeholders  charters  are 
satisfied  with  the  general  scheme  of  home  rule. 

The  character  of  the  charters  adopted  seems  to  justify  this 
view.  The  statement  is  frequently  made  by  persons  who  have 
lived  in  various  cities  and  have  had  an  opportunity  to  com- 
pare freeholders  charters  with  legislative  charters  that  the 
former  are  noticeably  better,  that  they  more  nearly  conform 
to  the  best  principles  of  political  science,  have  greater  unity 
and  consistency,  are  better  adapted  to  the  needs  of  the  locality, 
respond  more  quickly  to  local  changes,  etc.  My  own  investi- 
gation confirms  this  statement,  but  there  have  been  excep- 
tions. The  champions  of  home  rule  do  not  claim  that  it  has 
wrought  a  revolution  in  city  administration  or  has  brought  the 
millennium.  Municipal  corruption  has  existed  in  St.  Louis 
even  under  its  freeholders  charter.  But  political  corruption 
has  its  source  back  of  charters;  they  may  assist,  but  they 
rarely  cause  it.  However,  a  good  charter  is  an  aid  to  good 
government,  and  so  far  as  it  is — often  immeasurably  so — 
the  system  of  home  rule  we  are  discussing  has  contributed  its 
share. 

The  long  period  in  which  it  has  been  tested  and  the  vary- 
ing circumstances  under  which  it  has  been  tried  seem  to  indi- 
cate that  its  beneficial  results  are  permanent  and  not  transi- 
tory. It  is  founded  on  certain  fundamental  principles  which 
are  thoroughly  sound.  In  the  first  place,  the  system  fixes 
responsibility.  Under  legislative  charters,  the  city  excuses  it- 
self for  every  misdeed,  saying  that  as  it  does  not  make  its 
own  laws,  it  cannot  be  held  accountable  and  that  the  fault  lies 
with  the  legislature.  The  legislature  replies  that  the  city  is 
to  blame.  When  a  city  makes  its  own  charter,  such  shilly- 
shallying is  impossible.  If  its  government  is  at  fault,  it  has 
the  exclusive  power  to  remodel  it,  and  it  cannot  shift  the  bur- 
den to  another 's  shoulders.  It  makes  its  own  bed,  and  it  must 
lie  in  it — a  theorem  which  conduces  to  the  selection  of  a  bet- 
ter bed. 

Responsibility  is  not  only  focalized  but  localized.     State 


346  READINGS  IN  CIVIL  GOVERNMENT 

administration  of  municipal  matters  may  centralize  and 
definitely  fix  responsibility,  but  the  persons  in  authority  are 
out  of  each.  They  are  not  elected  by  the  locality  and  they  can 
neither  be  punished  by  it  for  mal-administration  nor  rewarded 
for  efficiency — a  condition  which  leads  to  indifference,  to 
laxity,  and  often  to  corruption.  Under  home  rule,  the  condi- 
tions are  exactly  reversed.  The  officials  are  near  at  hand 
where  they  may  be  watched,  every  act  made  known,  misdeeds 
punished,  and  efficiency  rewarded.  This  applies  with  great 
force  to  charter-making  and  the  satisfactory  character  of  free- 
holders charters  is  largely  due  to  the  localization  of  responsi- 
bility. 

Home  rule  has  also  an  educational  value.  The  boy  never 
learns  to  swim  who  refuses  to  enter  the  water.  The  city  never 
learns  to  administer  its  affairs  by  being  governed  from  the 
State  capitol.  Left  to  themselves,  these  western  cities  have 
made  experiments  and  acquired  valuable  experience.  They 
have  adopted  many  ideas  which  are  new  to  munic'.pal  admin- 
istration ;  some  have  failed  and  some  have  succeeded ;  but  the 
lessons  have  been  well  learned  and  the  cities  are  wiser  and 
stronger. 

The  concentration  of  power  has  a  stimulating  as  well  as 
sobering  effect.  When  legislative  interference  is  removed,  the 
city  not  only  says,  we  are  thrown  upon  our  own  resources  and 
must  take  more  care,  but  also,  here  now  is  our  opportunity  to 
achieve  results;  the  State  has  expressed  belief  in  our  ability 
to  govern  ourselves;  we  will  not  disappoint  it.  Having  the 
power  to  accomplish  something  and  seeing  at  last  the  impossi- 
bility of  having  one 's  efforts  set  aside  by  outside  interference, 
men  of  ability  and  civic  patriotism  come  to  the  fore. 

This,  after  all,  is  the  immediate  cause  of  the  beneficial  re- 
sults, for  if  good  men  are  not  elected  as  members  of  charter 
conventions,  good  charters  will  not  be  drafted.  There  have 
been  exceptions,  but  generally  speaking  delegates  to  free- 
holders conventions  have  been  selected  from  among  the  best 
men  of  the  city.  Party  lines  have  been  broken  down  and  nom- 
inations made  independent  of  party,  or  the  best  men  of  each 


MUNICIPAL  GOVEKNMENT  347 

party  placed  upon  a  union  ticket.  In  elections,  too,  party 
lines  have  not  been  followed.  Naturally,  the  men  selected 
have  been  of  a  high  type,  a  higher  type  than  the  members  of 
the  legislature.  They  have  been  chosen  for  a  special  purpose 
and  with  their  special  qualifications  for  this  work  in  mind. 
The  importance  of  the  duty  to  be  performed  has  made  the 
selections  of  the  best  men  imperative,  and  in  turn  it  has  at- 
tracted them,  just  as  a  constitutional  convention  attracts  the 
ablest  men  of  the  State.  Further,  a  charter  convention  gives 
its  whole  attention  to  one  subject  and  not  to  a  multitude  of 
unrelated  topics.  Every  point  is  given  careful  consideration, 
both  within  and  without  the  convention. 

The  States  have  benefited  as  well  as  the  cities.  By  the  re- 
moval of  local  matters  from  the  jurisdiction  of  the  legislature, 
special  legislation  has  greatly  been  reduced.  For  several  years 
prior  to  the  adoption  of  the  constitution  of  1879,  the  legis- 
lature of  California  passed  from  1,000  to  1,200  acts  at  each 
session.  In  the  session  of  1903,  only  385  were  enacted  (for 
many  years  the  number  has  not  risen  above  300)  and  of  these 
only  19  related  to  city  affairs.  This  decrease  is  not  wholly 
due  to  the  provisions  for  city-made  charters,  but  in  part  to 
the  general  prohibition  against  special  legislation  of  many 
kinds.  But  without  the  scheme  authorizing  each  city  to  make 
its  own  charter,  there  would  have  continued  to  be  a  large 
number  of  local  acts  in  one  form  or  another,  if  we  may  judge 
from  the  experience  of  other  States  where  they  have  adopted 
the  prohibition  against  special  legislation,  but  have  not  pro- 
vided for  the  formation  of  charters  by  the  cities  themselves. 

Primarily  the  city  has  benefited  by  this  decrease  in  legis- 
lative interference,  but  not  less  than  the  State.  It  is  now 
possible  for  legislators  to  give  their  full  time  and  attention 
to  matters  of  general  interest.  Heretofore,  local  matters  ab- 
sorbed most  of  the  session.  As  each  member  was  continuously 
busy  log-rolling  on  some  local  measure,  he  had  little  time  for 
bills  of  broad  character  and  general  concern.  It  is  unjust  to 
blame  the  men  themselves  too  severely,  for  their  constituents 
and  the  local  politicians  besieged  them  constantly.  If  they 


348  READINGS  IN  CIVIL  GOVERNMENT 

rebelled  or  were  indifferent,  they  were  not  re-elected.  The 
locality  was  not  wholly  at  fault  either,  for  to  secure  the  kind 
of  government  wanted,  it  was  necessary  to  go  to  the  legisla- 
ture ;  there  was  no  power  vested  in  the  city.  The  root  of  the 
evil  was  in  the  lack  of  home  rule,  and  when  it  was  granted, 
the  legislature  was  free  to  do  the  work  for  which  it  was  in- 
tended, viz.,  to  enact  general  laws  for  the  interest  of  the  whole 
State. 

In  principle  the  system  in  vogue  in  these  western  States  is 
not  new.  In  our  early  history  the  drafting  of  charters  by  the 
cities  themselves  through  some  well  recognized  local  agency, 
such  as  the  common  council  or  a  specially  selected  charter 
committee  or  convention,  was  the  customary  plan.  Even  in 
New  York,  where  the  legislature  at  such  an  early  date  as- 
sumed the  prerogative  of  enacting  numerous  laws  relating  to 
purely  local  affairs,  it  was  a  well  recognized  principle  until 
well  into  the  last  century,  that  a  law  altering  the  charter 
should  not  be  passed  when  opposed  by  the  city.  Even  later 
the  principal  acts  that  were  passed  without  first  seeking  local 
approval  were  acts  conferring  power  upon  the  city  rather 
than  restricting  its  functions.  The  last  charter  convention 
in  New  York  was  held  in  1846,  and  the  method  it  suggested 
for  charter  amendments — proposals  to  be  approved  by  a  two- 
thirds  vote  of  the  members  of  each  branch  of  the  bicameral 
council  and  afterwards  ratified  by  the  people — was  almost 
identical  with  the  method  provided  a  generation  later  in  the 
home  rule  scheme  of  Missouri. 

In  the  States  which  have  suffered  least  from  the  evils  of 
special  legislation,  the  legislature  has  confined  its  activities 
to  the  enactment  of  very  brief  and  general  laws  specifying  in 
general  terms  only  the  principal  features  of  municipal  char- 
ters, leaving  to  the  cities  themselves  the  privilege  of  filling 
in  the  details  and  of  altering  them  as  local  conditions  changed. 
England,  which  is  looked  upon  as  the  home  of  self-govern- 
ment, has  pursued  a  similar  course;  and  in  France  the  cities 
likewise  have  been  given  wide  discretionary  powers. 

The  practical  difference  between  the  "freeholders  charters" 


MUNICIPAL  GOVERNMENT  349 

provided  for  in  these  five  western  States  and  this  system  is 
small.  In  each,  matters  of  State  interest  are  reserved  to  the 
central  government.  To  the  cities  there  is  also  reserved  full 
power  to  deal  with  municipal  matters  in  their  own  way.  The 
principal  difference  is  that  under  the  English  and  French 
systems  and  the  plan  of  enacting  only  very  general  laws,  the 
legislative  authority  may  interfere  at  any  time  and  deprive 
the  cities  of  all  autonomy;  while  under  constitutional  home 
rule  a  field  of  municipal  activity  is  set  apart  into  which  the 
State  authorities  may  not  come.  It  is  merely  the  crystalliza- 
tion into  constitutional  law  of  the  best  practice  in  the  United 
States  and  Europe — a  crystallization  that  has  been  found  to 
be  necessary  to  protect  the  rights  of  cities  against  the  encroach- 
ments of  the  State  legislature.  In  no  country  is  the  city  made 
absolutely  independent,  but  where  some  sort  of  control  is  nec- 
essary, administrative  control  has  been  substituted  for  legis- 
lative interference  to  the  great  benefit  of  all  concerned.  The 
recent  tendency  in  the  United  States  is  in  the  same  direc- 
tion. 


68.    COUNCIL  GOVERNMENT  VS.   MAYOR  GOVERNMENT. 

Another  important  recent  tendency  in  American  city  government 
is  the  concentration  of  power  in  the  hands  of  the  mayor.  The  coun- 
cil is  reduced  in  size,  or  from  a  bicameral  to  a  unicameral  body  and 
shorn  of  its  main  functions,  or  is  abolished  completely,  as  in  the 
cases  of  Galveston  and  Des  Moines.  That  this  development  has 
been  carried  to  an  extreme  and  that  the  city  council  should  be  re- 
tained and  rehabilitated  is  the  belief  expressed  by  Professor  E.  Dana 
Durand  in  the  following  article:  [1900]. 

The  most  striking  tendency  in  the  recent  history  of  Ameri- 
can municipal  government  is  that  toward  increasing  the  power 
and  responsibility  of  the  mayor.  There  is  scarcely  an  impor- 
tant city  which  has  not  modified  its  charter  in  this  direction 
within  the  past  quarter-century.  The  practically  exclusive 
control  which  the  city  council  formerly  exercised  over  the  ex- 
ecutive administration  has  been  by  gradual  steps  almost  com- 


350  READINGS  IN  CIVIL  GOVERNMENT 

pletely  taken  away;  while  even  what  have  always  been  con- 
sidered essentially  legislative  functions,  especially  those 
pertaining  to  the  finances,  have  been  in  no  small  measure 
transferred  to  the  city  executive.  At  the  same  time,  there  has 
been  a  rapid  centralization  of  the  executive  power  itself. 
Heads  of  departments  were  formerly  for  the  most  part  placed 
in  office,  or  at  least  retained  there,  regardless  of  the  will  of  the 
incumbent  mayor;  but  by  the  most  modern  charters  they  are 
nearly  all  made  appointive  and  summarily  removable  by  him. 
In  New  York,  Boston,  Chicago,  Cleveland  and  several  other 
leading  cities,  the  right  of  confirming  appointments,  the  1,-i-t- 
remaining  means  by  which  the  council  could  exercise  some  di- 
rect control  over  the  personnel  of  the  executive,  has  now  been 
abolished,  while  in  other  municipalities  it  is  retained  only  as  a 
concession  to  tradition  and  conservative  influences. 

This  great  change  in  municipal  organization,  moreover,  has 
not  been,  like  so  many  others,  brought  about  simply  by 
thoughtless,  partisan  or  corrupt  legislative  tinkering.  While 
in  many  cases  such  influences  have  doubtless  shared  in  the 
movement,  it  has  yet  met  the  approval — though  in  differing 
degrees  and  according  to  different  lines  of  reasoning — of  very 
many  of  those  who  have  disinterestedly  sought  better  munici- 
pal government.  It  has  the  sanction  of  such  names  as  those 
of  Seth  Low,  Gamaliel  Bradford,  Edmund  J.  James  and  Frank 
J.  Goodnow.  The  latest  and  most  authoritative  utterance  as 
to  the  relation  of  the  council  to  the  mayor  is  to  be  found  in 
the  report  of  the  municipal  program  committee  of  the  Na- 
tional Municipal  League,  published  with  the  approval  of  the 
League  in  1899.  The  committee  does,  indeed,  maintain  the 
desirability  of  rehabilitating  the  decaying  city  council,  but 
urges  that  this  body  be  confined  strictly  to  legislative  func- 
tions; while  the  probability  is  that  the  suggested  methods  of 
increasing  its  influence  would  prove  relatively  ineffective  in 
practice.  The  proposed  general  municipal  charter  provides 
that  the  mayor  shall  have  the  sole  power  of  appointing  and 
removing  all  executive  officers  except  the  comptroller;  and 
that  he  shall  be  given  also  the  exclusive  right  to  initiate  appro- 


MUNICIPAL  GOVERNMENT  351 

priation  measures,  leaving  the  council  only  the  authority  to 
reduce  items  of  the  estimates  submitted. 

Had  the  increase  in  the  prerogatives  of  mayors  not  been 
accompanied  by  a  very  great  weakening,  often  by  the  almost 
complete  annihilation,  of  the  power  of  our  city  councils,  it 
would  perhaps  call  for  less  comment.  Could  it  be  considered 
as  having  merely  introduced  that  separation  of  powers  which 
is  the  main  principle  of  our  constitutional  law ;  had  city  legis- 
latures retained  a  prominence  corresponding  to  that  still  pos- 
sessed by  Congress  and  state  legislatures — we  should  have  no 
new  problem  in  the  science  of  politics.  We  should  have  sim- 
ply the  old  question,  whether  or  not  this  system,  with  its 
checks  and  balances,  is  after  all  more  advantageous  than  that 
which  gives  the  ultimate  control  and  responsibility  to  the 
representative  body  alone ;  with  the  additional  inquiry 
whether,  granting  the  desirability  of  the  separation  of  pow- 
ers in  the  higher  grades  of  government,  it  is  equally  feasible 
and  desirable  in  the  city.  But  the  actual  standing  of  the  city 
council  is  far  different  from  that  of  our  state  and  national 
legislatures.  Already  in  many  cities  either  the  council  has 
been  deprived  directly  by  statute  of  all  save  relatively  insig- 
nificant powers,  or  in  practice,  despite  the  legal  form  of  au- 
thority, its  real  influence  has  dwindled  almost  to  zero.  In 
both  New  York  and  Brooklyn,  prior  to  their  consolidation,  we 
saw  " a  local  elective  legislature  with  practically  no  power"; 
while  under  the  Greater  New  York  charter  the  sphere  of  the 
council  is  apparently  increased  by  little  more  than  "  certain 
obstructive  powers, ' '  which  are  scarcely  likely  in  actual  work- 
ing to  restore  it  to  a  position  of  influence.  The  council  still 
retains  in  most  cities  the  relatively  unimportant  function  of 
making  ordinances  concerning  the  conduct  of  citizens — as  to 
nuisances,  use  of  streets,  etc.  It  still  grants  franchises,  though 
often  the  executive  participates  very  largely  in  this  power. 
It  still  has  some  control  over  expenditure,  although,  under  the 
new  practice  of  giving  the  initiation  of  financial  measures 
solely  to  the  executive,  the  council  has  often  ceased  to  have 
much  real  weight  in  determining  the  budget.  Other  powers 


352  READINGS  IN  CIVIL  GOVERNMENT 

than  these,  as  regards  either  the  broad  policies  or  the  details 
of  administration,  the  council  in  many  cities  has  almost  none : 
the  state  legislature  or  the  municipal  executive  has  absorbed 
them  all.  Unless  there  shall  be  a  turning  in  the  tide,  the 
once  all-powerful  city  council  seems  likely  to  become  a  mere 
useless  fifth  wheel  in  the  American  municipal  chariot. 

Some,  indeed,  of  the  friends  of  good  city  government  have 
watched  this  emasculation  of  the  council  with  regret  and  ap- 
prehension and  have  advocated  measures,  usually  rather  in- 
effective for  restoring  some  of  its  pristine  vigor.  But  others 
have  seen  in  this  process  only  the  steady  withdrawal  of  power 
from  dangerous  hands  to  place  it  in  safer  ones.  The  council 
is  widely  discredited.  The  name  of  alderman  is  used  as  if 
synonymous  with  "boodler"  and  " ward-heeler. ' '  "It  is  not 
entirely  clear/'  says  Seth  Low,  speaking  of  New  York  and 
Brooklyn,  "that  either  city  would  suffer  under  existing  con- 
ditions by  the  abolition  of  its  common  council."  Mr.  Low 
utters  this  with  something  of  a  tone  of  regret,  but  others  have 
boldly  and  cheerfully  advocated  this  very  step.  Says  one 
recent  writer: 

Because  legislative  bodies  are  always  inefficient  administrators,  it 
does  not  follow  that  administrators  are  poor  legislators.  ...  It 
has  yet  to  be  shown  that  aldermen  have  ever  filled  a  useful  function 
in  a  modern  American  city. 

Doubtless  this  last  is  the  position  of  an  extremist,  which 
would  meet  little  endorsement.  Nevertheless,  the  conspicuous 
facts  of  the  great  reduction  of  the  power  of  the  council,  of  the 
progressive  degeneration  of  its  character,  of  the  growing  dis- 
trust with  which  it  is  viewed,  challenge  consideration.  They 
appear  to  demand  a  thorough  study  of  the  arguments  which 
have  been  advanced  in  favor  of  the  transfer  of  the  centre  of 
gravity  of  municipal  administration  from  the  council  to  the 
mayor.  They  confront  us  with  such  questions  as  these:  Is 
this  transfer  of  power  consistent  with  democratic  principles? 
If  not,  are  we  yet  forced  to  it  by  the  unripeness  of  our  city 
populations  for  democracy?  Is  the  movement  a  temporary 


MUNICIPAL  GOVERNMENT  353 

or  a  permanent  one?  If  we  have  gone  too  far  in  taking  a 
large  part  of  properly  legislative  work  from  the  council  and 
giving  it  to  the  executive,  can  we  partially  retrace  our  steps 
and  secure  a  practicable  division  of  the  legislative  from  the 
executive  sphere?  Can  we  prevent  the  council  from  swal- 
lowing the  mayor,  to  use  Dr.  Albert  Shaw's  phrase,  if  we  at- 
tempt to  check  the  mayor  in  his  process  of  engorging  the  coun- 
cil? If  this  .balance  of  powers  be  found  impossible,  is  not 
perhaps  the  logical  and  democratic  solution  to  be  found  in 
making  a  numerous  representative  body,  rather  than  a  single 
individual,  the  controlling  and  responsible  authority  in  mu- 
nicipal government?  We  shall  best  be  able  to  consider  these 
questions,  if  we  take  up,  one  after  another,  the  arguments 
which  have  been  brought  forward  in  favor  of  increasing  the 
power  and  responsibility  of  the  mayor.  .  .  . 

The  fallacy  of  the  line  of  reasoning  which  we  have  been 
criticising  is  aggravated  by  the  fact  that,  in  pointing  out  the 
results  which  have  come  from  centralizing  power  in  the  mayor, 
no  account  is  made  of  the  growth  of  public  sentiment  demand- 
ing better  government  and  compelling  the  choice  of  worthier 
men  for  office — men  who  would  have  made  improvement  in 
the  administration  under  any  form  of  organization.  Flagrant 
abuses  from  time  to  time  stir  up  the  ' '  good  citizens, ' '  who  are 
always  in  the  majority,  if  they  will  only  act  and  act  together. 
A  wave  of  reform  overturns  with  the  same  sweep  forms  and 
individuals ;  for  the  American  reformer  is  never  content  unless 
he  tinkers  the  governmental  machine  at  the  same  time  that  he 
puts  new  men  in  charge  of  it.  The  improvement  which  comes 
perhaps  solely  from  the  change  of  men  is  then  attributed 
primarily  to  the  change  in  form.  That  this  is  a  fairly  correct 
description  of  what  has  taken  place  in  recent  years  in  some 
American  cities  which  have  introduced  the  mayor  system 
seems  to  be  evidenced  by  the  fact  that  the  character  of  the  gov- 
ernment has  often  been  but  temporarily  improved  after  the 
change,  or  at  least  has  fluctuated  with  the  rise  and  fall  of  the 
reform  spirit  among  the  citizens.  It  is  too  early  to  judge 
finally  the  practical  working  of  the  system.  Undoubtedly 
23 


354  READINGS  IN  CIVIL  GOVERNMENT 

there  has  been  some  permanent  increase  in  the  interest  of  the 
people  in  municipal  government  and  in  their  devotion  to  the 
civic  welfare,  and  this  fact  will  tend  in  itself  to  give  us  a 
higher  level  of  city  administration.  But  the  path  of  one  man 
rule  is  not  all  rose-strewn.  Many  bad  mayors  have  got  into 
power  and,  by  the  abuse  of  their  immense  prerogatives,  have 
given  administration  scarcely  equalled  in  extravagance,  in- 
efficiency and  corruption,  during  the  worst  periods  of  the 
earlier  regime.  Nor  have  the  people  always  been  able — as 
they  should  have  been,  according  to  the  theory  of  the  one- 
man  system — by  at  once  placing  the  blame  where  it  belonged, 
to  overthrow  the  unworthy  ruler  and  establish  an  upright  one 
in  his  stead.  The  untrammelled  mayor,  with  his  enormous 
patronage,  his  control  of  the  election  machinery,  his  ability 
often  to  conceal  from  the  public  the  true  character  of  his  ad- 
ministration, has  not  unfrequently  succeeded  in  securing  re- 
election for  himself  or  triumph  for  his  ring.  Only  a  few  in- 
stances of  the  unsuccessful  working  of  mayor  rule  can  be  cited 
from  among  the  many  whose  existence  any  candid  student  of 
recent  municipal  history  must  admit. 

It  must  be  confessed  that  Boston  has  for  the  most  part 
elected  efficient  and  upright  mayors  during  recent  years,  but 
other  cities  have  not  been  so  fortunate.  In  New  York  City  the 
prominence  of  the  mayoralty  has  at  times  driven  even  Tam- 
many Hall  to  put  up  good  men,  such  as  Grace  and  Hewitt. 
But  within  this  very  decade,  in  the  face  of  the  growing  re- 
form sentiment,  that  organization  has  elected  to  the  mayor's 
chair  for  two  successive  terms  an  '  *  illiterate  and  obscure  man  ' ' 
who  filled  all  vacant  offices  with  "  adventurers  of  the  lowest 
character ' ' ;  while  under  the  rule  of  his  successor,  also  elected 
by  Tammany,  a  legislative  investigating  committee  unearthed 
in  the  police  department  scandals  such  as  scarcely  any  other 
civilized  city  has  ever  known.  The  first  election  under  the 
Greater  New  York  charter  resulted  in  the  defeat  of  Seth  Low, 
well  known  to  have  been  the  best  mayor  Brooklyn  had  ever 
had,  by  a  man  who  has  followed  almost  absolutely,  in  his  ap- 
pointments and  his  general  policy,  the  dictation  of  the  Tarn- 


MUNICIPAL  GOVERNMENT  355 

many  boss  and  whose  connection  with  the  Ice  Trust  has  been 
by  no  means  creditable. 

In  Brooklyn  the  first  election  under  its  famous  ' '  model  char- 
ter" brought  Mr.  Low  into  the  Mayor's  chair,  but  for  eight 
years  after  he  left  office  ''mayors  were  elected,  and  appoint- 
ments were  made  by  them,  on  party  grounds";  while  the 
administration  of  the  city  was  "believed  to  be  feeble  and  un- 
trustworthy, its  public  moneys  and  franchises  to  be  unscrupu- 
lously wasted.  .  .  .  This  last  is  the  admission  of  a  strong 
advocate  of  the  mayor  system,  who  insists  that  it  was  even 
then  working  well  in  Brooklyn,  for  the  reason  that  the  people 
knew  precisely  who  was  at  fault,  but  who  fails  to  show  us  why 
they  did  not  straightway  put  better  men  into  office. 

Philadelphia,  too,  since  the  great  increase  in  the  power  of 
the  mayor  in  1887,  has  found  it  impossible,  with  perhaps  a 
single  exception,  to  elect  good  men  to  that  office,  while  the 
character  of  the  council  has  fallen  lower  than  ever  before. 
A  state  investigation,  made  in  1897,  revealed  many  abuses — 
favoritism  and  extravagance  in  letting  contracts,  interference 
by  the  police  in  elections  and  connivance  by  them  in  all  sorts 
of  violations  of  law,  and  above  all,  a  complete  undermining 
of  the  civil  service  reform  system,  this  last  evil  being  em- 
phatically corroborated  by  the  secretary  of  the  National  Civil 
Service  Reform  Association.  The  recent  attempt  of  the  mayor 
and  city  officers  to  blackmail  Mr.  Wanamaker  illustrates  the 
character  of  the  administration ;  while  the  lease  of  the  gas 
works  in  1897  appears  to  have  been  accompanied  by  whole- 
sale corruption.  Philadelphia's  expenditures  rose  from  $13,- 
273,000  in  1887  to  $23,491,000  in  1895. 

Similar,  too,  has  been  the  experience  of  several  smaller 
cities  which  have  changed  to  the  one-man  system.  Indianapo- 
lis, since  the  adoption  of  her  centralizing  charter  in  1891,  has 
not  elected  a  single  mayor  who  has  obeyed  the  spirit,  or  even 
the  letter,  of  the  laws  regulating  the  civil  service.  All  ap- 
pointments have  been  made  on  strictly  partisan  grounds. 
Four  years  after  Quincy,  Mass.,  greatly  increased  the  power  of 
the  mayor,  Mr.  Gamaliel  Bradford,  who  had  specially  urged 


356  HEADINGS  IN  CIVIL  GOVERNMENT 

the  change,  was  forced  to  confess  that  "extravagance  of  ex- 
penditure, local  jobbing  and  caucus  politics  are  as  rampant 
as  in  any  other  city  in  the  state."  In  Cleveland  the  mayor 
has  abused  his  appointing  power  for  the  sake  of  aiding  his  own 
political  ambitions.  Nowhere,  in  fact,  can  the  advocate  of 
mayor  domination,  if  he  be  candid,  point  to  anything  like 
thoroughly  and  continuously  good  administration  where  that 
system  has  prevailed.  Temporary  improvement  has  often  fol- 
lowed a  change  to  mayor  rule;  permanent  improvement  even 
has  resulted  in  certain  cases  from  doing  away  with  the  anom- 
alies and  complexities  of  earlier  charters;  but  the  actual  suc- 
cess of  the  centralization  of  power  has  fallen  very  far  short 
of  fulfilling  the  promises  which  were  held  out  to  us. 


69.   THE    DBS    MOINES    PLAN    OP    CITY    GOVERNMENT. 

In  1907  the  General  Assembly  of  Iowa  adopted  "an  Act  to  pro- 
vide for  the  government  of  certain  cities"  in  which  were  combined 
many  of  the  newer  features  lately  advocated  for  city  government  in 
the  United  States.  The  following  selection  contains  the  important 
provisions  of  the  law: 

Section  1.  [This  law  applies  only  to  cities  having  a  popula- 
tion of  or  exceeding  25,000  inhabitants.]1 

Sec.  2.  [Upon  the  presentation  of  a  petition,  signed  by 
electors  equal  in  number  to  25  per  cent,  of  all  votes  cast  for  all 
candidates  for  mayor  at  the  last  preceding  city  election,  the 
question  of  adopting  this  plan  of  government  shall  be  submit- 
ted to  the  voters.] 

Sec.  4.  In  every  such  city  there  shall  be  elected  at  the  regu- 
lar biennial  municipal  election,  a  mayor  and  four  councilmen. 

If  any  vacancy  occurs  in  any  such  office  the  remaining 
members  of  said  council  shall  appoint  a  person  to  fill  such 
vacancy  during  the  balance  of  the  unexpired  term. 

Said  officers  shall  be  nominated  and  elected  at  large.  Said 
officers  shall  qualify  and  their  terms  of  office  shall  begin  on 
the  first  Monday  after  their  election.  .  .  . 

i  Sections  enclosed  in  brackets  are  paraphrased. 


MUNICIPAL  GOVERNMENT  357 

Sec.  5.  Candidates  to  be  voted  for  at  all  general  municipal 
elections  at  which  a  mayor  and  four  councilmen  are  to  be 
elected  under  the  provisions  of  this  act  shall  be  nominated 
by  a  primary  election,  and  no  other  names  shall  be  placed  upon 
the  general  ballot  except  those  elected  in  the  manner  herein- 
after prescribed.  The  primary  election  for  such  nomination 
shall  be  held  on  the  second  Monday  preceding  the  general  mu- 
nicipal election.  The  judges  of  election  appointed  for  the  gen- 
eral municipal  election  shall  be  the  judges  of  the  primary 
election,  and' it  shall  be  held  at  the  same  time,  so  far  as  possi- 
ble, and  the  polls  shall  be  opened  and  closed  at  the  same  hours, 
with  the  same  clerks  as  are  required  for  said  general  municipal 
election.  .  .  . 

Sec.  6.  Every  such  city  shall  be  governed  by  a  council,  con- 
sisting of  the  mayor  and  four  councilmen,  chosen  as  provided 
in  this  act,  each  of  whom  shall  have  the  right  to  vote  on  all 
questions  coming  before  the  council.  Three  members  of  the 
council  shall  constitute  a  quorum,  and  the  affirmative  vote  of 
three  members  shall  be  necessary  to  adopt  any  motion,  resolu- 
tion or  ordinance,  or  pass  any  measure,  unless  a  greater  num- 
ber is  provided  for  in  this  act.  Upon  every  vote  the  yeas  and 
nays  shall  be  called  and  recorded,  and  every  motion,  resolu- 
tion or  ordinance  shall  be  reduced  to  writing  and  read  before 
the  vote  is  taken  thereon.  The  mayor  shall  preside  at  all 
meetings  of  the  council;  he  shall  have  no  power  to  veto  any 
measure,  but  every  resolution  or  ordinance  passed  by  the 
council  must  be  signed  by  the  mayor,  or  by  two  councilmen, 
and  be  recorded,  before  the  same  shall  be  in  force. 

Sec.  7.  The  council  shall  have  and  possess  and  the  council 
and  its  members  shall  exercise  all  executive,  legislative  and 
judicial  powers  and  duties  now  had,  possessed  and  exercised 
by  the  mayor,  city  council,  board  of  public  work,  park  com- 
missioners, board  of  police  and  fire  commissioners,  board  of 
water-works  trustees,  board  of  library  trustees,  solicitor,  asses- 
sor, treasurer,  auditor,  city  engineer,  and  other  executive  and 
administrative  officers  in  cities  of  the  first  class  and  cities  act- 
ing under  special  charter.  The  executive  and  administrative 


358  READINGS  IN  CIVIL  GOVERNMENT 

powers,  authority  and  duties  in  such  cities  shall  be  distributed 
into  and  among  five  departments,  as  follows: 

1.  Department  of  Public  Affairs. 

2.  Department  of  Accounts  and  Finances. 

3.  Department  of  Public  Safety. 

4.  Department  of  Streets  and  Public  Improvements. 

5.  Department  of  Parks  and  Public  Property. 

The  council  shall  determine  the  powers  and  duties  to  be  per- 
formed by,  and  assign  them  to,  the  appropriate  department; 
shall  prescribe  the  powers  and  duties  of  officers  and  em- 
ployes; may  assign  particular  officers  and  employes  to  one 
or  more  of  the  departments;  may  require  an  officer  or  em- 
ploye to  perform  duties  in  two  or  more  departments ;  and  may 
make  such  other  rules  and  regulations  as  may  be  necessary 
or  proper  for  the  efficient  and  economical  conduct  of  the  busi- 
ness of  the  city. 

Sec.  8.  The  mayor  shall  be  superintendent  of  the  depart- 
ment of  Public  Affairs,  and  the  council  shall  at  the  first  regu- 
lar meeting  after  election  of  its  members  designate  by 
majority  vote  one  councilman  to  be  superintendent  of  the  de- 
partment of  Accounts  and  Finances ;  one  to  be  superintendent 
of  the  department  of  Public  Safety ;  one  to  be  superintendent 
of  the  department  of  Streets  and  Public  Improvements;  and 
one  to  be  superintendent  of  the  department  of  Parks  and 
Public  Property ;  but  such  designation  shall  be  changed  when- 
ever it  appears  that  the  public  service  would  be  benefited 
thereby. 

The  council  shall,  at  said  first  meeting,  or  as  soon  as  prac- 
ticable thereafter,  elect  by  majority  vote  the  following  offi- 
cers: A  city  clerk,  solicitor,  assessor,  treasurer,  auditor,  civil 
engineer,  city  physician,  marshal,  chief  of  fire  department, 
market  master,  street  commissioner,  three  library  trustees,  and 
such  other  officers  and  assistants  as  shall  be  provided  for  by 
ordinance  and  necessary  to  the  proper  and  efficient  conduct 
of  the  affairs  of  the  city ;  and  shall  appoint  a  police  judge  in 


MUNICIPAL  GOVERNMENT  359 

those  cities  not  having  a  superior  court.  Any  officer  or  as- 
sistant elected  or  appointed  by  the  council  may  be  removed 
from  office  at  any  time  by  vote  of  a  majority  of  the  members 
of  the  council  except  as  otherwise  provided  for  in  this  act. 

Sec.  9.  The  council  shall  have  power  from  time  to  time  to 
create,  fill  and  discontinue  offices  and  employments  other  than 
herein  prescribed,  according  to  their  judgment  of  the  needs 
of  the  city;  and  may  by  majority  vote  of  all  the  members  re- 
move any  sueh  officer  or  employe,  except  as  otherwise  pro- 
Vided  for  in  this  act ;  and  may  by  resolution  or  otherwise  pre- 
scribe, limit  or  change  the  compensation  of  such  officers  or 
employes.  .  .  . 

Sec.  11.  Eegular  meetings  of  the  council  shall  be  held  on 
the  first  Monday  after  the  election  of  councilmen,  and  there- 
after at  least  once  each  month.  The  council  shall  provide  by 
ordinance  for  the  time  of  holding  regular  meetings,  and  spe- 
cial meetings  may  be  called  from  time  to  time  by  the  mayor 
or  two  councilmen.  All  meetings  of  the  council,  whether  reg- 
ular or  special,  at  which  any  person  not  a  city  officer  is  admit- 
ted, shall  be  open  to  the  public. 

The  mayor  shall  be  president  of  the  council  and  preside 
at  its  meetings  and  shall  supervise  all  departments  and  report 
to  the  council  for  its  action  all  matters  requiring  attention  in 
either.  The  superintendent  of  the  department  of  Accounts 
and  Finances  shall  be  vice-president  of  the  council,  and  in 
case  of  vacancy  in  the  office  of  mayor,  or  the  absence  or  ina- 
bility of  the  mayor,  shall  perform  the  duties  of  the  mayor. 

Sec.  12.  Every  ordinance  or  resolution  appropriating  money 
or  ordering  any  street  improvement  or  sewer,  or  making  or  au- 
thorizing the  making  of  any  contract,  or  granting  any  fran- 
chise or  right  to  occupy  or  use  the  streets,  highways,  bridges 
or  public  places  in  the  city  for  any  purpose,  shall  be  com- 
plete in  the  form  in  which  it  is  finally  passed,  and  remain  on 
file  with  the  city  clerk  for  public  inspection  at  least  one  week 
before  the  final  passage  on  adoption  thereof.  No  franchise 
or  right  to  occupy  or  use  the  streets,  highways,  bridges  or 
public  places  in  any  city  shall  be  granted,  renewed  or  ex. 


360  READINGS  IN  CIVIL  GOVERNMENT 

tended,  except  by  ordinance,  and  every  franchise  or  grant  for 
interurban  or  street  railways,  gas  or  water-works,  electric  light 
or  power  plants,  heating  plants,  telegraph  or  telephone  sys- 
tems, or  other  public  service  utilities  within  said  city,  must 
be  authorized  or  approved  by  a  majority  of  the  electors  voting 
thereon  at  a  general  or  special  election.  .  .  . 

Sec.  14.  [Provides  for  a  civil  service  commission,  fixes  the 
power  of  this  commission  and  determines  the  manner  in  which 
it  shall  act. 

Substitutes  personal  merit  for  political  pull  in  securing  and 
holding  positions  as  employes.] 

Sec.  15.  The  council  shall  each  month  print  in  pamphlet 
form  a  detailed  itemized  statement  of  all  receipts  and  ex- 
penses of  the  city  and  a  summary  of  its  proceedings  during  the 
preceding  month,  and  furnish  printed  copies  thereof  to  the 
state  library,  the  city  library,  the  daily  newspapers  of  the  city, 
and  to  persons  who  shall  apply  therefor  at  the  office  of  the 
city  clerk.  At  the  end  of  each  year  the  council  shall  cause  a 
full  and  complete  examination  of  all  the  books  and  accounts 
of  the  city  to  be  made  by  competent  accountants,  and  shall 
publish  the  result  of  such  examination  in  the  manner  above 
provided  for  publication  of  statements  of  monthly  expendi- 
tures. .  .  . 

Sec.  18.  [This  section  establishes  the  right  of  recall,  that 
is,  provides  the  ways  and  means  by  which  a  dishonest  or  in- 
competent mayor  or  councilman  can  be  removed  from  office 
by  a  vote  of  the  people.] 

Sec.  19.  [Provides  for  the  initiative.  If  the  council  re- 
fuses to  pass  needed  ordinances,  the  people  can  compel  the 
passage  thereof.] 

Sec.  20.  [Provides  for  the  protest  and  referendum.  If  any 
ordinance  is  passed  by  the  council  which  is  not  satisfactory 
to  the  people,  they  have  a  right  to  reject  it  by  vote.] 


MUNICIPAL  GOVERNMENT  361 


70.    THE  CITY  MANAGER  PLAN. 

In  the  following  article  Professor  Herman  G.  James  discusses 
some  of  the  advantages  of  this  latest  development  in  American 
City  Government:  (1914) 

The  first  city  in  this  country  to  provide  for  a  city  manager 
was  Staunton,  Virginia.  There,  however,  the  old  mayor  and 
council  form  of  organization  was  retained.  Some  other  cities 
since  that  time  have  provided  by  ordinance  for  the  position 
of  city  manager  without  changing  their  form  of  government 
in  other  respects.  The  combination  of  commission  government 
features  with  the  city  manager  idea  was  not  put  into  practice 
until  after  Staunton  had  made  the  first  move.  Yet  certain 
authoritative  bodies  concerned  with  city  government  exclude 
from  their  definition  and  from  the  consideration  of  the  history 
of  the  city  manager  movement  the  city  which  first  employed 
a  general  manager,  and  give  credit  to  Sumter,  S.  C.,  as  being 
the  first  city  manager  city  because  it  was  the  first  to  combine 
commission  and  manager. 

Now  it  does  not  seem  quite  clear  that  such  a  course  is  justi- 
fied. The  general  manager  feature  as  introduced  in  Staunton 
and  some  other  cities  can  show  at  least  some  of  the  advantages 
claimed  for  the  city  manager  plan  as  defined  by  the  authorities 
mentioned  above,  for  instance  the  application  of  the  principle 
of  a  single  administrative  head  chosen  not  by  the  electorate, 
but  appointed  because  of  special  knowledge  and  training.  It 
would  never  do  therefore  to  dismiss  this  original  manifestation 
of  the  plan  as  wholly  without  merit. 

However,  it  is  true  that  the  city  manager  feature  has  a 
better  chance  of  successful  application  in  cities  governed  by  a 
commission  and  most  of  the  cities  that  are  adopting  the  city 
manager  plan  now  are  doing  so  in  connection  with  the  com- 
mission feature,  which,  of  course,  retains  its  superiority  over 
the  old  form  of  organization,  whether  the  city  manager  is  pro- 
vided or  not.  In  speaking  of  the  city  manager  plan  hereafter 
therefore  we  shall  have  in  mind  the  combination  of  the  com- 
mission government  and  general  manager  ideas. 

A  more  important  question  than  that  of  classifying  the  city 
manager  plan  with  reference  to  commission  government  is  the 


362  READINGS  IN  CIVIL  GOVERNMENT 

consideration  of  its  merits  and  defects  as  compared  with  that 
form  and  the  likelihood  of  its  ultimately  supplanting  the  pres- 
ent commission  form  entirely. 

One  of  the  distinguishing  features  of  commission  govern- 
ment is  the  partitioning  out  of  the  various  departments  among 
the  commissioners  and  the  charging  of  each  one  with  the  re- 
sponsibility for  the  proper  administration  of  his  department. 
The  commissioners  are,  it  is  true,  collectively  responsible  as  a 
commission,  at  least  in  theory,  for  the  entire  administration 
of  the  city.  But  in  point  of  fact,  both  in  the  minds  of  the 
commissioners  and  in  the  opinion  of  the  public,  this  collective 
responsibility  is  a  very  secondary  matter.  The  real  responsi- 
bility is  an  individual  one  attaching  with  regard  to  each  de- 
partment to  the  commissioner  in  charge  of  that  department. 

Now  this  feature  of  commission  government  is  open  to  some 
very  serious  objections.  In  the  first  place,  the  work  of  look- 
ing after  the  administration  of  a  city  department  is  such  that 
it  requires  considerable  time  and  attention.  This  means  that 
commissioners  cannot  be  expected  to  give  their  services  free. 
They  must  be  paid  a  salary,  therefore,  as  though  they  were  ex- 
perts in  their  line.  But,  of  course,  real  experts  cannot  be  pro- 
cured for  the  salaries  offered  to  commissioners,  and,  if  ob- 
tainable, would  not  be  gotten  by  means  of  popular  election. 
The  result  is  that  the  services  of  really  competent  men  cannot 
be  procured  as  heads  of  the  administrative  departments  and 
the  best  that  can  be  hoped  for  is  to  secure  fairly  representa- 
tive men  without  special  training  of  any  kind  for  their  work. 
As  though  to  make  sure  that  no  specially  qualified  man  from 
an  administrative  point  of  view  be  chosen  to  the  commission, 
most  commission  cities  provide  that  commissioners  be  elected 
merely  to  the  commission  and  then  distribute  the  departments 
among  themselves  after  election.  In  this  manner  five  lawyers 
or  bankers  or  business  men  might  be  chosen,  instead  of  hav- 
ing men  elected  to  particular  posts  with  some  regard  to  the 
diversity  of  needs  to  be  met.  In  recent  times  the  tendency 
seems  to  be  somewhat  in  the  direction  of  having  commis- 
sioners run  for  particular  posts,  but,  of  course,  that  still  leaves 


MUNICIPAL  GOVERNMENT  363 

us  with  the  difficulties  of  popular  choice  of  professional  ad- 
ministrators. The  results  of  this  system  are,  of  course,  the 
same  in  commission  government  as  they  would  be  in  a  rail- 
road corporation  which  chose  a  board  of  directors  consisting 
of  corner  grocerymen  and  then  entrust  the  passenger  de- 
partment to  one,  the  freight  department  to  another,  and  so  on. 

This  brings  us  to  the  second  fundamental  defect  of  com- 
mission government.  Even  if  our  municipal  electorate  were 
able  and  willing  to  be  guided  in  its  choice  of  commissioners 
solely  by  considerations  of  fitness  for  particular  administra- 
tive posts,  and  even  if  they  were  willing  to  provide  salaries 
large  enough  and  terms  of  office  long  enough  to  procure  the 
services  of  administrative  experts,  the  system  would  still  be 
open  to  very  grave  objections.  Administration  is  that  func- 
tion of  government  which  demands  for  its  proper  exercise 
centralization  of  power  and  responsibility.  The  proposal  in 
the  national  constitutional  convention  of  1787  to  provide  a 
plural  executive  was  wisely  rejected  in  favor  of  the  single  ex- 
ecutive plan.  The  result  has  been  the  centralization  of  the 
administration  of  the  United  States  in  the  hands  of  the  Presi- 
dent. Private  business  everywhere  applies  the  principle  and 
it  is  a  curious  fact  that  advocates  of  commission  government, 
while  stressing  in  their  arguments  for  the  new  form  of  govern- 
ment the  analogy  between  the  city  commission  and  the  board 
of  directors  of  a  corporation,  fail  to  take  the  further  step 
and  provide  a  counterpart  for  the  manager  of  the  corporation. 
From  the  administrative  point  of  view  an  expert  manager  is 
much  more  important  for  a  corporation  than  an  expert  board 
of  directors.  A  railroad  corporation  might  conceivably  thrive 
under  a  board  of  corner  grocerymen  if  only  it  had  the  proper 
kind  of  a  manager.  . 

A  manager  for  a  city,  then,  would  not  only  present  the  pos- 
sibility of  expert  administration,  which  commission  govern- 
ment practically  excludes,  but  it  would  provide  a  unification 
and  centralization  of  the  administration  which  is  now  wholly 
lacking.  It  is  true  that  the  work  of  municipal  administration 
can  be  roughly  classified  under  five  or  six  different  heads, 


364  READINGS  IN  CIVIL  GOVERNMENT 

more  or  less  clearly  defined,  but,  of  course,  these  departments 
cannot  work  quite  independently  of  each  other,  since  their 
spheres  of  operation  inevitably  intersect.  The  health  depart- 
ment must  co-operate,  on  the  one  hand,  with  the  education 
department  in  the  matter  of  school  hygiene.  It  must  work 
hand  in  hand  with  the  police  department  in  the  matter  of 
executing  its  administrative  orders.  It  must  consult  with  the 
department  of  public  welfare  in  the  matter  of  housing  legisla- 
tion, public  baths,  etc.  The  department  of  public  works  must, 
in  the  same  way,  be  guided  by  considerations  of  public  health, 
safety  and  convenience  in  the  provision  of  water  and  sewerage 
facilities,  in  the  construction  and  maintenance  of  streets,  and 
in  the  location  of  public  buildings.  All  of  the  departments 
must  be  in  close  touch  with  the  city  attorney's  office  if  they 
are  not  to  be  involved  in  legal  and  constitutional  difficulties. 
Finally,  the  department  of  finance  must  have  a  certain  juris- 
diction in  all  the  other  departments  if  accuracy  and  com- 
pleteness of  accounts  are  to  be  insured.  The  instances  in 
which  no  one  city  department  can  properly  act  alone  in  mat- 
ters apparently  falling  under  its  jurisdiction  could  be  multi- 
plied without  number.  In  fact,  the  difficulty  would  consist 
rather  in  discovering  instances  in  which  any  city  department 
could  effectively  act  with  entire  disregard  of  all  the  other  de- 
partments. Then,  finally,  there  must  be  some  central  author- 
ity to  act  in  matters  of  appointment,  discipline  and  removal 
of  subordinate  officials,  so  that  the  service  may  be  standardized 
and  organized  on  a  proper  basis. 

That  the  evils  resulting  from  this  lack  of  administrative 
centralization  are  not  purely  theoretical  is  evidenced  by  the 
complaints  voiced  by  persons  actively  engaged  in  the  adminis- 
tration of  cities  as  commissioners.  The  log-rolling  tactics, 
working  at  cross  purposes,  duplication  of  work,  gaps  in  the 
distribution  of  functions  are  features  of  commission  govern- 
ment that  are  actually  encountered  and  against  which  those 
most  directly  concerned  have  raised  a  voice  in  protest.  It  is 
interesting  to  note  that  Houston,  Texas,  has  realized  the  dis- 
advantages from  an  administrative  point  of  view  of  five  co- 


MUNICIPAL  GOVERNMENT  365 

ordinate  department  heads  and  has  given  to  the  mayor  a 
degree  of  authority  which  is  quite  unusual  in  commission-gov- 
erned cities.  Indeed,  it  is  hard  to  see  how  the  mayor  could 
be  given  any  more  power  without  practically  destroying  the 
very  foundation  on  which  commission  government  rests  and 
returning  to  the  mayor  and  council  form  with  the  single 
change  of  a  reduction  in  the  size  of  the  council.  So-called 
mayors  in  other  commission  cities  have  felt  the  very  real  need 
of  greater  administrative  concentration. 

There  must,  then,  it  is  clear,  be  a  change  from  the  principle 
of  administrative  co-ordination  and  decentralization  now  ap- 
plied in  commission  cities  to  a  policy  of  centralization.  This 
is  exactly  wherein  the  city  manager  plan  is  an  improvement 
over  the  commission  form  in  the  very  point  in  which  the  lat- 
ter was  weakest,  namely,  on  the  administrative  side.  A  gen- 
eral manager  chosen  by  and  responsible  to  the  commission 
would  do  for  municipal  administration  what  the  general  man- 
ager does  for  business  administration.  The  analogy  is  close 
and  the  soundness  of  the  principle  admits  of  no  doubt. 

Administrative  efficiency  demands  the  greatest  possible  free- 
dom in  the  manager's  power  of  appointment,  discipline,  and 
removal.  Public  protection  against  corrupt  politicians  de- 
mands a  limitation  of  those  powers.  Between  these  two  op- 
posing principles  the  proper  path  is  not  easy  to  find.  It  is 
clear,  however,  that  until  we  have  progressed  much  farther 
than  we  are  at  present  in  the  development  of  a  sound  public 
opinion  with  regard  to  public  offices,  some  sort  of  civil  ser- 
vice merit  rules  must  be  applied,  especially  to  city  manager 
cities,  in  order  to  guard  against  the  danger  of  machine  control. 

While  the  danger  of  abuse  of  the  administrative  power  of 
appointment  and  removal  for  party  or  selfish  purposes  con- 
stitutes, perhaps,  the  most  serious  danger  of  the  city  manager 
plan,  it  is  not  the  one  which  will  be  so  viewed  by  the  general 
public.  That  word  of  universal  taboo  in  this  country,  that 
anathema  of  the  political  demagogue,  " undemocratic,"  has 
already  pointed  its  reactionary  and  destructive  finger  at  the 
new  development.  It  is  claimed  that  it  is  "undemocratic"  to 


366  READINGS  IN  CIVIL  GOVERNMENT 

lodge  all  administrative  power  in  the  hands  of  a  single  indi- 
vidual, even  though  he  be  appointed  and  removed  by  the 
elected  representatives  of  the  people  and  though  his  adminis- 
trative powers  be  circumscribed  by  civil  service  merit  regu- 
lations. It  takes  but  little  thought  to  show  that  a  city  man- 
ager thus  at  the  mercy  of  the  commission  will  have  to  make 
good  with  the  electorate  through  energy  and  efficiency,  coupled 
with  the  necessary  amount  of  tact,  if  he  is  long  to  retain  his 
position.  He  is,  it  is  true,  once  removed  from  the  improper 
political  pressure  brought  to  bear  by  a  discontented  minority 
whose  personal  interests  are  interfered  with  by  an  impartial 
and  vigorous  enforcement  of  the  law.  But  who  will  say  that 
the  barrier  thus  set  up  against  illegitimate  influence  is  not  a 
salutary  one,  or  that  the  evident  will  of  the  law-abiding,  decent 
element  in  the  community  cannot  make  itself  effectively  felt 
against  the  retention  of  a  manifestly  undesirable  city  manager. 
Democracy  need  fear  no  setback  through  the  introduction  of 
this  new  form  of  administration ;  and  efficiency,  so  long  absent 
from  the  councils  of  democracy,  can  come  into  her  own  at  last. 

Finally,  the  question  has  been  raised  whether  or  not  the 
city  manager  plan,  even  if  adapted  to  cities  of  medium  size, 
could  be  made  to  work  well  in  our  largest  cities  of  a  million 
inhabitants  and  over.  So  far  as  some  of  the  commission  fea- 
tures are  concerned  there  would  seem  to  be  some  real  need  of 
modification.  So,  for  instance,  it  is  a  fair  question  whether  a 
commission  of  five,  the  usual  number  of  representatives  in 
commission  cities,  would  be  satisfactory  for  these  larger  cities. 
The  principle  of  efficient  administration  is  well  served  by  a 
small  governing  body,  whether  the  city  be  large  or  small.  At 
the  same  time  it  is  well  to  remember  that  city  government, 
though  much  more  largely  business  than  is  state  or  national 
government,  is  not  without  its  important  legislative  problems 
in  matters  of  municipal  policy.  For  these  matters  it  is  de- 
sirable to  have  an  adequate  representative  body  and  no  doubt 
the  commission  might  well  be  doubled  or  trebled  over  its  nor- 
mal size  for  the  largest  cities. 

Closely  connected  with  the  matter  of  the  cize  of  the  com- 


MUNICIPAL  GOVERNMENT  367 

mission  in  our  largest  cities  is  the  question  of  general  ticket 
or  district  election.  The  practice  of  election  on  general  ticket 
presents  increasing  difficulties  the  larger  the  area  of  election, 
since  the  labor  and  expense  of  conducting  a  campaign  are 
greatly  augmented.  But,  aside  from  that,  it  seems  unques- 
tionable that  some  of  our  largest  cities  are  made  up  of  sev- 
eral geographic  divisions  which  really  have  rather  distinct 
needs  and  whose  interests  would,  perhaps,  better  be  con- 
served by  a  representative  body  in  which  these  geographical 
divisions  as  such  have  representation. 

These  questions,  however,  as  was  stated  above,  are  not  con- 
nected with  the  general  manager  features  of  city  government. 
There  is  no  reason  why  the  efficiency  of  management  should 
be  destroyed  by  departing  from  the  principle  of  a  single  ad- 
ministrative head  in  cities.  This  principle  is  fundamental 
whatever  the  size  of  the  city;  indeed,  it  may  be  said  to  in- 
crease in  importance  with  the  size  and  consequent  complexity 
of  the  administrative  service.  There  may  be  a  need  of  an  as- 
sistant city  manager,  or  even  of  more  than  one,  as  in  the  largest 
German  cities  there  are  three  burgomasters,  but  a  single  man- 
ager must  still  remain  the  head  of  the  service. 

Predictions  are,  of  course,  dangerous,  and  it  would  be  folly 
to  attempt  a  prophecy  as  to  the  spread  of  the  city  manager 
plan  in  this  country.  But,  if  we  may  conclude  from  the  rapid- 
ity of  the  spread  of  commission  government  that  the  Ameri- 
can municipal  electorate  has  at  last  awakened  to  a  realiza- 
tion of  the  importance  of  improving  the  machinery  of  city 
government,  it  seems  safe  to  conclude  that  the  superiority  of 
the  city  manager  plan  over  the  ordinary  commission  govern- 
ment will  not  be  any  slower  to  receive  recognition  than  were 
the  merits  of  commission  government  over  the  old  mayor  and 
council  form. 

ADDITIONAL  READINGS 
1— The  City  Council,  Goodnow,  F.  J.,  City  Government  in 

the  United  States,  137-76. 

2 — Charter  Making  in  America,  Woodruff,  C.  R.,  Atlantic 
Monthly,  CIII,  628-39, 


368  READINGS  IN  CIVIL  GOVERNMENT 

3 — The  Bureau  of  Municipal  Research,  Bruere,  H.,  Proceed- 
ings of  the  American  Political  Science  Association,  V. 
111-121. 

4— The  Government  of  the  Great  City,  Pedbody,  W.  R., 
Forum,  XXXVI,  611-24. 

5 — Municipal  Ownership  of  Public  Utilities,  Fairlie,  J.  A., 

Essays  in  Municipal  Administration,  262-74. 
6— The  Relation  of  the  City  to  Public  Utilities,  Rowe,  L.  S., 

Problems  of  City  Government,  208-40. 
7 — Does  Municipal  Ownership  Pay,  Howe,  F.  C.,  The  City 

the  Hope  of  Democracy,  136-57. 
8— The  Control  of  Public  Utilities,  Wilcox,  D.  F.,  The  Amer- 

can  City,  52-90. 
9 — Public  Control,   Ownership  and  Operation,  Zeublin,  C., 

American  Municipal  Progress,  302-31. 
10— Sanitation,  Ibid.,  ch.  IV. 


CHAPTER  XVI 
PARTY  ORGANIZATION 

71.    NATIONAL  AND   LOCAL   PARTY   ORGANIZATION. 

It  is  a  common  saying  that  modern  popular  government  is  party 
government.  In  no  country  is  this  more  true  than  in  the  United 
States  where  so  many  offices  are  elective  and  there  is  so  much  for 
the  party  to  do.  Therefore,  the  party  having  much  to  do,  provides 
an  elaborate  organization  and  it  becomes  increasingly  inevitable 
that  the  same  organization  will  be  used  for  all  elections  local,  State 
and  national.  In  the  following  extract  President  Wilson  states  this 
point  clearly: 

We  have  made  many  efforts  to  separate  local  and  national 
elections  in  time  in  order  to  separate  them  in  spirit.  Many 
local  questions  upon  which  the  voters  of  particular  cities  or 
counties  or  States  are  called  upon  to  vote  have  no  connection 
whatever  either  in  principle  or  in  object  with  the  national 
questions  upon  which  the  choice  of  congressmen  and  of  presi- 
dential electors  should  turn.  It  is  ideally  desirable  that  the 
voter  should  be  left  free  to  choose  the  candidates  of  one  party 
in  local  elections  and  the  candidates  of  the  opposite  party  in 
national  elections.  It  is  undoubtedly  desirable  that  he 
should  go  further  and  separate  matters  of  local  administra- 
tion from  his  choice  of  party  altogether,  choosing  his  local 
representatives  upon  their  merits  as  men  without  regard  to 
their  affiliations.  We  have  hopefully  made  a  score  of  efforts 
to  obtain  "non-partisan"  local  political  action.  But  such 
efforts  always  in  the  long  run  fail.  Local  parties  cannot  be 
one  thing  for  one  purpose  and  another  for  another  without 
losing  form  and  discipline  altogether  and  becoming  hope- 
lessly fluid.  Neither  can  parties  form  and  re-form,  now  for 
24  369 


370  READINGS  IN  CIVIL  GOVERNMENT 

this  purpose  and  again  for  that,  or  be  for  one  election  one 
thing  and  for  another  another.  Unless  they  can  have  local 
training  and  constant  rehearsal  of  their  parts,  they  will  fail 
of  coherent  organization  when  they  address  themselves  to  the 
business  of  national  elections.  For  national  purposes  they 
must  regard  themselves  as  parts  of  greater  wholes,  and  it  is 
impossible  under  such  a  system  as  our  own  that  they  should 
maintain  their  zest  and  interest  in  their  business  if  their  only 
objects  are  distant  and  general  objects,  without  local  rootage 
or  illustration,  centering  in  Congress  and  utterly  disconnected 
with  anything  that  they  themselves  handle.  Local  offices 
are  indispensable  to  party  discipline  as  rewards  of  local 
fidelity,  as  the  visible  and  tangible  objects  of  those  who  devote 
their  time  and  energy  to  party  organization  and  undertake 
to  see  to  it  that  the  full  strength  of  the  party  vote  is  put 
forth  when  the  several  local  sections  of  the  party  are  called 
upon  to  unite  for  national  purposes.  If  national  politics  are 
not  to  become  a  mere  game  of  haphazard  amidst  which  parties 
can  make  no  calculations  whatever,  systematic  and  disciplined 
connections  between  local  and  national  affairs  are  imperative, 
and  some  instrument  must  be  found  to  effect  them.*  What- 
ever their  faults  and  abuses,  party  machines  are  absolutely 
necessary  under  our  existing  electoral  arrangements,  and  are 
necessary  chiefly  for  keeping  the  several  segments  of  parties 
together.  No  party  manager  could  piece  local  majorities 
together  and  make  up  a  national  majority,  if  local  majorities 
were  mustered  upon  non-partisan  grounds.  No  party  man- 
ager can  keep  his  lieutenants  to  their  business  who  has  not 
control  of  local  nominations.  His  lieutenants  do  not  expect 
national  rewards:  their  vital  rootage  is  the  rootage  of  local 
opportunity. 

Just  because,  therefore,  there  is  nowhere  else  in  the  world 
so  complex  and  various  an  electoral  machinery  as  in  the 
United  States,  nowhere  else  in  the  world  is  party  machinery 
so  elaborate  or  so  necessary.  It  is  important  to  keep  this  in 
mind.  Otherwise,  when  we  analyze  party  action,  we  shall 
fall  into  the  too  common  error  of  thinking  that  we  are  analyz- 


PARTY  ORGANIZATION  371 

ing  disease.  As  a  matter  of  fact,  the  whole  thing  is  just  as 
normal  and  natural  as  any  other  political  development. 
The  part  that  party  has  played  in  this  country  has  been  both 
necessary  and  beneficial,  and  if  bosses  and  secret  managers 
are  often  undesirable  persons,  playing  their  parts  for  their 
own  benefit  or  glorification  rather  than  for  the  public  good, 
they  are  at  least  the  natural  fruits  of  the  tree.  It  has  borne 
fruit  good  and  bad,  sweet  and  bitter,  wholesome  and  corrupt, 
but  it  is  native  to  our  air  and  practice  and  can  be  uprooted 
only  by  an  entire  change  of  system. 

All  the  peculiarities  of  party  government  in  the  United 
States  are  due  to  the  too  literal  application  of  Whig  doctrine, 
to  the  infinite  multiplication  of  elective  offices.  There  are  two 
things  to  be  done  for  which  we  have  supplied  no  adequate 
legal  or  constitutional  machinery:  there  are  thousands  of 
officials  to  be  chosen  and  there  are  many  disconnected  parts 
of  government  to  be  brought  into  co-operation.  "It  may  be 
laid  down  as  a  political  maxim  that  whatever  assigns  to  the 
people  a  power  which  they  are  naturally  incapable  of  wield- 
ing takes  it  away  from  them."  They  have,  under  our  Con- 
stitution and  statutes,  been  assigned  the  power  of  filling 
innumerable  elective  offices;  they  are  incapable  of  wielding 
that  power  because  they  have  neither  the  time  nor  the  neces- 
sary means  of  co-operative  action ;  the  power  has  therefore 
been  taken  away  from  them,  not  by  law  but  by  circumstances, 
and  handed  over  to  those  who  have  the  time  and  the  inclina- 
tion to  supply  the  necessary  organization;  and  the  system  of 
election  has  been  transformed  into  a  system  of  practically 
irresponsible  appointment  to  office  by  private  party  managers 
— irresponsible  because  our  law  has  not  yet  been  able  to 
devise  any  means  of  making  it  responsible.  It  may  also  be 
laid  down  as  a  political  maxim  that  when  the  several  chief 
organs  of  government  are  separated  by  organic  law  and 
offset  against  each  other  in  jealous  seclusion,  no  common 
legal  authority  set  over  them,  no  necessary  community  of 
interest  subsisting  amongst  them,  no  common  origin  or  pur- 
pose dominating  them,  they  must  of  necessity,  if  united  at  all, 


372  READINGS  IN  CIVIL  GOVERNMENT 

be  united  by  pressure  from  without;  and  they  must  be  united 
if  government  is  to  proceed.  They  cannot  remain  checked 
and  balanced  against  one  another;  they  must  act,  and  act 
together.  They  must,  therefore,  of  their  own  will  or  of  mere 
necessity  obey  an  outside  master. 

Both  sets  of  dispersions,  the  dispersion  of  offices  and  the 
dispersion  of  functions  and  authorities,  have  co-operated  to 
produce  our  parties,  and  their  organization.  Through  their 
caucuses,  their  county  conventions,  their  state  conventions, 
their  national  conventions,  instead  of  through  legislatures  and 
cabinets,  they  supply  the  indispensable  means  of  agreement 
and  co-operation,  and  direct  the  government  of  the  country 
both  in  its  policy  and  in  its  personnel.  Their  local  managers 
make  up  the  long  and  variegated  lists  of  candidates  made 
necessary  under  our  would-be  democratic  practice;  their 
caucuses  and  local  conventions  ratify  the  choice;  their  state 
and  national  conventions  and  declarations  of  principle  de- 
termine party  policy.  Only  in  the  United  Stat3s  is  party 
thus  a  distinct  authority  outside  the  formal  government, 
expressing  its  purposes  through  its  own  separate  and  peculiar 
organs  and  permitted  to  dictate  what  Congress  shall  under- 
take and  the  national  administration  address  itself  to.  Under 
every  other  system  of  government  which  is  representative  in 
character  and  which  attempts  to  adjust  the  action  of  govern- 
ment to  the  wishes  and  interests  of  the  people,  the  organiza- 
tion of  parties  is,  in  a  sense,  indistinguishable  from  the  organs 
of  the  government  itself.  Party  finds  its  organic  lodgment 
in  the  national  legislature  and  executive  themselves.  The 
several  active  parts  of  the  government  are  closely  united  in 
organization  for  a  common  purpose,  because  they  are  under  a 
common  direction  and  themselves  constitute  the  machinery  of 
party  control.  Parties  do  not  have  to  supply  themselves 
with  separate  organs  of  their  own  outside  the  government 
and  intended  to  dictate  its  policy,  because  such  separate  organs 
are  unnecessary.  The  responsible  organs  of  government  are 
also  the  avowed  organs  of  party.  The  action  of  opinion  upon 
them  is  open  and  direct,  not  circuitous  and  secret. 


PARTY  ORGANIZATION  373 


72.   WHAT   THE  PARTY  MACHINE   HAS   TO  DO. 

The  basis  of  the  elaborate  party  machine  and  the  army  of  poli- 
ticians that  are  required  to  run  it  is  to  be  found  in  the  large  num- 
ber of  elective  offices  for  which  the  parties  must  make  nominations. 
Mr.  James  Bryce  describes  this  system  in  the  following  selection :  * 

In  Europe  a  citizen  rarely  votes  more  than  twice  or  thrice 
a  year,  sometimes  less  often,  and  usually  for  only  one  person 
at  a  time.  Thus  in  England  any  householder,  say  at  Man- 
chester or  Liverpool,  votes  once  a  year  for  a  town  councillor 
(if  there  is  a  contest)  ;  once  in  three  years  for  members  of 
a  school  board  (if  there  is  a  contest)  ;  once  in  four  years  (on 
an  average)  for  a  member  of  the  House  of  Commons.  .  .  . 

Now  compare  the  elections  held  to  fill  offices  in  the  great 
State  of  Ohio,  which  is  fairly  typical  of  the  middle  or  older 
"Western  States.  Citizens  vote  at  the  polls  for  the  following 
five  sets  of  offices.  For  simplicity  I  take  the  case  of  a  city 
instead  of  a  rural  district,  but  the  number  of  elective  offices 
is  nearly  the  same  in  the  later.  .  .  . 

This  list  shows  a  total  of  seven  elections  at  the  polls  taking 
place,  annually,  twenty-one  to  twenty -six  (according  to  cir- 
cumstances) taking  place  biennially,  eight  taking  place 
triennially,  two  quadrennially,  one  quinquennially,  one 
decennially — giving  an  average  in  round  numbers  of  twenty- 
two  elections  in  each  year.  Of  course  this  does  not  mean 
that  there  are  twenty-two  separate  and  distinct  elections,  for 
many  of  the  State  offices  are  filled  up  at  one  and  the  same 
election,  as  also  most  of  the  city  offices  at  one  and  the  same 
election.  It  means  that  there  are,  on  an  average,  twenty-two 
different  paid  offices  which  a  voter  has  annually  to  allot  by 
his  vote — that  is  to  say,  he  must  in  each  and  every  year  make 
up  his  mind  as  to  the  qualifications  of  twenty-two  different 
persons  or  sets  of  persons  to  fill  certain  offices.  As  nearly 
all  these  offices  are  contested  on  political  lines,  though  the 
respective  principles  (if  any)  of  Republicans  and  Democrats 

i  See  above  page  261,  note. 


374  READINGS  IN  CIVIL  GOVERNMENT 

have  no  more  to  do  with  the  discharge  of  the  duties  of  the 
State  and  local  offices  than  the  respective  principles  of 
Methodists  and  Baptists,  nominations  to  them  are  made  by 
the  respective  party  organizations.  Candidates  for  all,  or 
nearly  all,  the  above  offices  are  nominated  in  conventions 
composed  of  delegates  from  primaries.  I  cannot  give  the  pre- 
cise number  of  conventions,  but  there  must  be  at  least  seven 
or  eight,  although  one  or  two  of  these  will  not  be  held  every 
year.  As  the  areas  with  their  respective  conventions  overlap, 
the  same  primary  will  in  each  year  send  different  sets  of 
delegates  to  as  many  different  nominating  conventions,  six 
or  seven  at  least,  as  there  are  sets  of  offices  to  be  filled  up  in 
that  year.  The  number  and  names  of  the  elective  offices 
differ  in  different  States  of  the  Union,  but  the  general  features 
of  the  system  are  similar. 

Let  us  now  take  another  illustration  from  Massachusetts, 
and  regard  the  system  from  another  side  by  observing  how 
many  sets  of  delegates  a  primary  will  have  to  send  to  the 
several  nominating  conventions  which  cover  the  local  area  to 
which  the  primary  belongs. 

A  Massachusetts  primary  will  choose  the  following  sets  of 
persons,  including  committee-men,  candidates,  and  delegates: 

1.  Ward  and  city  committees  in  cities,  and  town  committees 
in  towns. 

2.  In  cities,  candidates  for  common  council  and  board  of 
aldermen ;  in  towns  candidates  for  ten  offices,  i.  e.,  selectmen, 
school  committee ;  overseers  of  poor,  town  clerk  and  treasurer, 
assessors  of  taxes,  etc. 

3.  In   cities,   delegates  to  a  convention  to  nominate   city 
officers. 

4.  Delegates  to  a  convention  to  nominate  county  officers. 

5.  Candidates  for  representatives  to  State  legislature,  or 
delegates  to  a  convention  to  nominate  the  same. 

6.  Delegates  to  a  convention  for  nominating  candidates  for 
State  Senate. 

7.  Delegates  to  a  convention  for  nominating  candidates  for 
State  Governor's  council. 


PARTY  ORGANIZATION  375 

8.  Delegates  to  a  convention  for  nominating  candidates  for 
State  offices  (e.  g.,  Governor,  Lieutenant- Governor,  etc.). 

The  above  are  annual.     Then  every  two  years — 

9.  Delegates  to  a  congressional  convention  for  nominating 
candidates  for  representatives  to  Congress. 

Then  every  four  years — 

10.  Delegates  to  a  district  convention  for  nominating  other 
delegates  (corresponding  to  the  members  of  Congress)  to  the 
national  Presidential  Convention  of  the  party;  and 

11.  Delegates  to  a  general  convention  for  nominating  four 
delegates  at  large  (corresponding  to  United  States  senators) 
to  national  Presidential  Convention. 

In  New  York  City,  at  the  November  elections,  there  are 
usually  from  one  hundred  and  sixty  to  two  hundred  candi- 
dates for  the  various  offices,  even  when  the  year  is  not  one  of 
those  when  presidential  electors  are  chosen;  and  all  these 
have  been  nominated  at  primaries  or  conventions.  But  I 
need  not  weary  the  reader  with  further  examples,  for  the  facts 
above  stated  are  fairly  illustrative  of  what  goes  on  over  the 
whole  Union. 

It  is  hard  to  keep  one's  head  through  this  mazy  whirl  of 
offices,  elections,  and  nominating  conventions.  In  America 
itself  one  finds  few  ordinary  citizens  who  can  state  the  details 
of  the  system,  though  these  are  of  course  familiar  to  profes- 
sional politicians. 

The  first  thing  that  strikes  a  European  who  contemplates 
this  organization  is  the  great  mass  of  work  it  has  to  do.  In 
Ohio,  for  instance,  there  are,  if  we  count  in  such  unpaid 
offices  as  are  important  in  the  eyes  of  politicians,  on  an 
average  more  than  twenty-five  offices  to  be  filled  annually  by 
election.  Primaries  or  conventions  have  to  select  candidates 
for  all  of  these.  Managing  committees  have  to  organize  the 
primaries,  "run"  the  conventions,  conduct  the  elections. 
Here  is  ample  occupation  for  a  professional  class. 

What  are  the  results  which  one  may  expect  this  abundance 
of  offices  and  elections  to  produce  ? 

The  number  of  delegates  needed  being  large,  since  there 


376  READINGS  IN  CIVIL  GOVERNMENT 

are  so  many  conventions,  it  will  be  hard  to  find  an  adequate 
number  of  men  of  any  mark  or  superior  intelligence  to  act 
as  delegates.  The  bulk  will  be  persons  unlikely  to  possess,  still 
more  unlikely  to  exercise,  a  careful  or  independent  judgment. 
The  function  of  delegate  being  in  the  case  of  most  conven- 
tions humble  and  uninteresting,  because  the  offices  are  un- 
attractive to  good  men,  persons  whose  time  is  valuable  will 
not,  even  if  they  do  exist  in  sufficient  numbers,  seek  it.  Hence 
the  best  citizens,  i.  e.,  the  men  of  position  and  intelligence, 
will  leave  the  field  open  to  inferior  persons  who  have  any 
private  or  personal  reason  for  desiring  to  become  delegates. 
I  do  not  mean  to  imply  that  there  is  necessarily  any  evil  in 
this  as  regards  most  of  the  offices,  but  mention  the  fact  to 
explain  why  few  men  of  good  social  position  think  of  the 
office  of  delegate,  except  to  the  National  Convention  once  in 
four  years,  as  one  of  trust  or  honor. 

The  number  of  places  to  be  filled  by  election  being  very 
large,  ordinary  citizens  will  find  it  hard  to  form  an  opinion 
as  to  the  men  best  qualified  for  the  offices.  Their  minds 
will  be  distracted  among  the  multiplicity  of  places.  In  large 
cities  particularly,  where  people  know  little  about  their 
neighbors,  the  names  of  most  candidates  will  be  unknown  to 
them,  and  there  will  be  no  materials,  except  the  recommenda- 
tion of  a  party  organization,  available  for  determining  the 
respective  fitness  of  the  candidates  put  forward  by  the  several 
parties.  .  .  . 

Those  who  have  had  experience  of  public  meetings  know 
that  to  make  them  go  off  well,  it  is  as  desirable  to  have  the 
proceedings  prearranged  as  it  is  to  have  a  play  rehearsed. 
You  must  select  beforehand  not  only  your  chairman,  but  also 
your  speakers.  Your  resolutions  must  be  ready  framed ;  you 
must  be  prepared  to  meet  the  case  of  an  adverse  resolution 
or  hostile  amendment.  This  is  still  more  advisable  where  the 
meeting  is  intended  to  transact  some  business,  instead  of 
merely  expressing  its  opinion;  and  when  certain  persons  are 
to  be  selected  for  any  duty,  prearrangement  becomes  not 
merely  convenient  but  indispensable  in  the  interests  of  the 


PARTY  ORGANIZATION  377 

meeting  itself,  and  of  the  business  which  it  has  to  dispatch. 
"Does  not  prearrangement  practically  curtail  the  freedom  of 
the  meeting?"  Certainly  it  does.  But  the  alternative  is 
confusion  and  a  hasty  unconsidered  decision.  Crowds  need 
to  be  led;  if  you  do  not  lead  them  they  will  go  astray,  will 
follow  the  most  plausible  speaker,  will  break  into  factions 
and  accomplish  nothing.  Hence  if  a  primary  is  to  discharge 
properly  its  function  of  selecting  candidates  for  office  or  a 
number  of  delegates  to  a  nominating  convention,  it  is  neces- 
sary to  have  a  list  of  candidates  or  delegates  settled  before- 
hand. And  for  the  reasons  already  given,  the  more  numerous 
the  offices  and  the  delegates,  and  the  less  interesting  the  duties 
they  have  to  discharge,  so  much  the  more  necessary  is  it  to 
have  such  lists  settled;  and  so  much  the  more  likely  to  be 
accepted  by  those  present  is  the  list  proposed. 

The  reasons  have  already  been  stated  which  make  the  list 
of  candidates  put  forth  by  a  primary  or  by  a  nominating 
convention  carry  great  weight  with  the  voters.  They  are  the 
chosen  standard-bearers  of  the  party.  A  European  may  re- 
mark that  the  citizens  are  not  bound  by  the  nomination ;  they 
may  still  vote  for  whom  they  will.  If  a  bad  candidate  is 
nominated,  he  may  be  passed  over.  That  is  easy  enough 
where,  as  in  England,  there  are  only  one  or  two  offices  to  be 
filled  at  an  election,  where  these  few  offices  are  important 
enough  to  excite  general  interest,  and  where  therefore  the 
candidates  are  likely  to  be  men  of  mark.  But  in  America 
the  offices  are  numerous,  they  are  mostly  unimportant,  and  the 
candidates  are  usually  obscure.  Accordingly  guidance  is 
welcome,  and  the  party  as  a  whole  votes  for  the  person  who 
receives  the  party  nomination  from  the  organization  author- 
ized to  express  the  party  view.  Hence  the  high  importance 
attached  to  "getting  the  nomination";  hence  the  care  be- 
stowed on  constructing  the  nominating  machinery;  hence  the 
need  for  prearranging  the  lists  of  delegates  to  be  submitted 
to  the  primary,  and  of  candidates  to  come  before  the  con- 
vention. 


378  READINGS  IN  CIVIL  GOVERNMENT 

73.   PRIMARY   ELECTION   LEGISLATION. 

One  way  to  diminish  what  the  party  machine  has  to  do  is  to  take 
the  nomination  of  candidates  partly  out  of  its  hands  by  providing 
for  a  legal  primary  election  of  party  candidates.  Laws  to  accom- 
plish this  have  been  adopted  in  a  number  of  States  during  the  last 
few  years.  In  the  following  selection  Professor  C.  E.  Merriam  dis- 
cusses some  of  the  problems  connected  with  legislation  on  this 
subject:  [1907]. 

The  widespread  interest  in  nominating  systems,  particu- 
larly during  the  last  ten  years,  has  given  rise  to  a  great  num- 
ber of  problems  new  to  American  politics.  These  questions 
are  puzzling  the  reformer,  the  practical  politician,  the  law- 
maker and  the  judge.  They  are  of  absorbing  interest  to  the 
student  of  political  institutions  and  tendencies.  It  is  the  pur- 
pose of  this  paper  to  discuss  only  three  of  these  problems, 
namely:  the  test  of  party  allegiance,  the  formation  of  the 
platform  under  the  direct  primary  system,  and  the  majority 
required  for  nomination. 

As  the  party  primary  becomes  more  and  more  like  an 
election,  the  more  important  does  the  question  of  party 
membership  become.  What  constitutes  a  republican  or  a 
democrat?  and  how  shall  a  satisfactory  legal  test  be  made? 
Originally  this  was  a  matter  over  which  the  party  authorities 
possessed  exclusive  jurisdiction,  and  which  they  might  regu- 
late and  control  in  their  discretion.  The  republican  com- 
mittee decided  what  evidence  was  necessary  to  establish  a 
right  to  participate  in  republican  primaries,  and  the  demo- 
cratic committee  defined  and  determined  the  essentials  of 
democracy.  The  abuse  of  this  power  in  many  cases  led  to 
legal  regulation  of  the  party  test.  The  most  frequent  test 
required  is  an  expression  of  intention  to  support  the  party 
candidates  in  the  ensuing  election,  coupled  with  a  statement 
of  past  support  of  or  affiliation  with  the  party.  In  Michigan 
the  test  includes  a  declaration  of  sympathy  with  the  objects 
of  the  party.  In  New  Jersey,  the  voter  must  state  that  ho 
supported  a  majority  of  the  party's  candidates  at  the  last 


PARTY  ORGANIZATION  379 

election,  and  intends  to  support  the  candidates  named  in 
the  primary.  South  Dakota  requires  previous  support  of  the 
party,  belief  in  a  "substantial  part"  of  principles  of  the 
party,  and  intention  to  support  the  candidates  nominated. 
Pennsylvania  requires  a  declaration  that  the  intending  voter 
supported  a  majority  of  the  party's  candidates  at  the  last 
election.  .  .  . 

As  the  question  of  party  suffrage  has  occupied  the  attention 
of  legislators  for  the  last  ten  years,  so  the  registration  of 
party  voters  has  become  one  of  great  interest.  Starting  with 
no  lists  at  all,  advancing  to  informal  party  lists,  then  on  to  the 
regular  registration  books  used  in  the  general  elections,  we 
find  in  the  latest  period  the  system  of  party  registration 
introduced.  A  number  of  States  have  provided  for  such  a 
system :  Kentucky  in  1892 ;  New  York  in  1898 ;  Nebraska  in 
1899 ;  South  Carolina  in  1900 ;  North  Carolina  and  Connecti- 
cut in  1901;  Maine  and  New  Jersey  in  1903;  Iowa,  Oregon 
and  Vermont  in  1904;  and  Michigan  in  1905  are  among  the 
number.  The  character  of  these  provisions  is  much  the  same 
in  all  States.  At  the  time  of  registration  the  voter  is  given 
an  opportunity  of  declaring  his  party  affiliation,  if  any, 
which  is  then  indicated  in  a  column  of  the  registry  book.  A 
list  of  party  voters  is  then  made  up  from  these  preferences, 
and  this  serves  as  their  registry  list  for  the  ensuing  primary 
election.  In  New  York  the  declaration  of  affiliation  is  secret 
and  the  names  are  not  disclosed  until  after  the  general  elec- 
tion, when  the  lists  are  thrown  open  and  in  New  York  City  are 
printed.  .  .  . 

In  a  very  few  instances  during  this  period,  the  party  test 
has  been  abolished  altogether.  The  California  law  of  1899 
contained  a  provision  which  enabled  the  voter  to  cast  a  ballot 
for  either  party,  without  divulging  his  party  preference. 
This  clause  was  subsequently  declared  unconstitutional, 
however.  A  similar  provision  was  contained  in  the  Oregon 
law  of  1901,  which  was  also  declared  unconstitutional.  The 
Minnesota  law  of  1899,  provided  for  the  open  primary,  but 
in  1901  this  feature  was  abandoned.  In  the  Wisconsin  law 


380  READINGS  IN  CIVIL  GOVERNMENT 

of  1903,  absolute  secrecy  of  the  ballot  is  secured,  and  the  voter 
may  vote  for  candidates  of  whichever  party  he  may  choose. 
Of  course,  he  cannot  vote  with  both  parties  at  the  same 
time. 

It  is  urged  in  favor  of  this  plan  that  it  protects  the  secrecy 
of  the  ballot;  that  it  makes  intimidation  or  undue  influence 
impossible;  that  the  requirement  of  a  partisan  test  is  both 
unnecessary  and  useless;  and  that  the  test  of  allegiance  ex- 
cludes only  the  honest  citizen  while  admitting  the  dishonest 
and  corrupt.  It  is  objected,  however,  that  without  some  sort 
of  party  test,  the  responsibility  of  the  party  for  the  character 
of  the  nominations  made  or  of  the  platform  adopted  is  entirely 
broken  down.  Members  of  the  republican  party  may  assist 
in  the  nomination  of  weak  democrats,  or  vice  versa;  and  un- 
scrupulous leaders  may  readily  transfer  blocks  of  voters  with- 
out regard  to  party  lines.  When  a  corrupt  machine  is 
threatened  by  the  nomination  of  an  aggressive  reformer,  it 
is  possible  to  avert  this  menace  by  the  use  of  available  num- 
bers of  the  other  machine.  In  these  ways,  it  is  held,  the 
responsibility  of  the  party  may  be  completely  destroyed,  or, 
at  any  rate,  seriously  crippled,  and  reform  movements  may 
be  made  more  difficult. 

On  the  whole,  if  any  test  is  required,  it  would  seem  suffi- 
cient to  exact  from  the  voter  a  statement  that  he  is  in  general 
sympathy  with  the  principles  of  the  party  and  that  he  intends 
to  support  its  candidates  generally  at  the  next  election.  This 
eliminates  the  period  of  probation  and  permits  the  voter  to 
pass  freely  from  one  party  to  the  other  as  conditions  or  cir- 
cumstances change.  The  system  of  party  enrollment  or 
registration  seems  to  lay  undue  stress  on  the  rigidity  of  party 
organization,  although  this  may  be  to  some  extent  offset  by 
liberal  provisions  for  supplementary  enrollment  or  change 
of  party  registration.  The  chief  objections  to  this  system 
would  then  disappear,  but  also  its  chief  merit,  namely,  that 
of  keeping  out  the  unwelcome  and  unscrupulous  invaders  of 
the  party.  This  illustrates  very  well  the  inherent  difficulty  in 
all  tests,  namely,  that  of  letting  down  the  bars  for  the  honest, 


PARTY  ORGANIZATION  381 

independent  voter  without  admitting,  at  the  same  time,  the 
dishonest  and  the  venal.  It  appears,  then,  that  no  solution 
of  the  problem  of  party  test  has  yet  been  reached  and  that 
much  more  practical  experience  and  much  more  mature  reflec- 
tion will  be  necessary  before  the  proper  sort  of  a  regulation 
can  be  devised. 

In  framing  direct  primary  laws,  an  important  problem 
arises  in  connection  with  the  formation  of  the  party  platform. 
With  the  abolition  of  the  delegate  convention,  the  representa- 
tive body  of  the  party,  how  shall  the  declaration  of  party 
principles  be  drawn  up?  What  shall  be  substituted  for  the 
present  authority?  How  shall  the  declarations  of  such  an 
authority  be  made  binding?  In  local  areas,  where  direct  pri- 
maries have  chiefly  been  tried  and  where  differences  in  prin- 
ciple are  rare,  the  question  of  the  platform  has  not  occasioned 
serious  trouble.  In  larger  districts,  like  States,  however,  the 
question  becomes  more  important  for,  although  distinct  State 
issues  are  not  so  common  as  State  campaigns,  there  are 
occasionally  serious  divisions  of  opinion  in  State  elections  and 
for  such  emergencies  provision  must  be  made  in  the  law. 

Several  answers  have  been  given  in  the  various  States.  In 
Wisconsin  provision  is  made  for  the  formation  of  a  State 
platform  by  a  candidates'  convention.  This  body  is  made 
up  of  all  the  party  candidates  for  State  office  and  for  the 
legislature,  together  with  the  hold-over  members  of  the  State 
senate.  In  this  way  members  both  of  the  legislative  and  the 
executive  departments  may  be  committed  to  a  definite  party 
policy,  and  this  party  policy  formally  presented  as  the 
platform.  In  Missouri  the  law  provides  for  the  formulation 
of  the  platform  by  the  State  central  committee  acting  with 
the  party  nominees  for  State  office,  for  congress,  and  for  the 
legislature.  In  North  Dakota  the  platform  is  framed  by  the 
State  central  committee  with  the  candidates  for  State  office. 
Still  another  method  is  found  in  Nebraska,  where  each  county 
committee  elects  one  delegate  and  the  delegates  so  chosen  meet 
and  frame  the  party  platform.  In  Texas  another  plan  is 
provided.  On  petition  of  10  per  cent,  of  the  party  voters, 


382  READINGS  IN  CIVIL  GOVERNMENT 

any  question  of  policy  must  be  submitted  to  the  voters  of  the 
State  at  the  primary  and,  if  approved  by  a  majority,  becomes 
a  part  of  the  platform  of  the  party.  It  is  also  provided 
that  no  convention  shall  place  in  the  platform  or  resolutions 
of  the  party  they  represent  any  demand  for  specific  legisla- 
tion unless  it  shall  have  been  submitted  to  a  direct  vote  of  the 
people  and  shall  have  been  endorsed  by  a  majority  vote  of  all 
the  votes  cast  in  the  primary  election  of  each  party.  Provision 
regarding  a  party  referendum  was  contained  in  the  Oregon 
law  of  1901. 

More  commonly,  however,  the  platform  is  formed  by  the 
candidate  or  candidates  themselves.  This  is  the  general 
method  employed  in  local  campaigns  throughout  the  South, 
and  in  the  State  campaigns  of  Washington  and  Oregon  in  the 
North.  In  the  Oregon  law,  express  provision  is  made  for 
declaration  by  the  candidate  of  the  principles  upon  which  he 
stands  in  not  exceeding  one  hundred  words  and  twelve  words 
are  permitted  to  be  printed  upon  the  ballot.  But  where  no 
legal  provision  is  made  for  such  a  declaration  upon  the  ballot, 
the  candidate  may  of  course  make  such  a  statement  the  basis 
of  his  campaign.  The  shaping  of  the  platform  by  the  can- 
didate seems,  all  things  considered,  best  fitted  to  survive. 
Where  there  is  a  serious  difference  of  opinions  as  to  policies, 
the  platform  is  likely  under  any  system  to  be  shaped  by  the 
dominant  groups  and  will  be  practically  the  program  outlined 
by  this  faction  in  its  fight  before  the  primary  election.  Gen- 
erally such  issues  are  as  clearly  and  as  sincerely  defined 
during  the  primary  as  they  would  be  in  the  platform  framed 
by  the  convention,  for  it  should  not  be  forgotten  that  the 
average  party  platform  is  verbose  and  perfunctory  and  often 
serves  no  real  purpose,  since  the  elections  are  usually  con- 
ducted upon  the  basis  of  national  issues.  Where  there  is  no 
living  issue  of  a  local  character,  it  is  not  likely  that  the 
question  will  be  obscured  or  befogged  because  of  the  failure 
of  the  party  convention  to  elaborate  its  position  on  other 
questions. 

In  case  definite  machinery  is  provided,  the  Wisconsin  plan 


PARTY  ORGANIZATION  383 

seems  to  possess  some  merit.  The  party  program  is  made, 
under  this  system,  by  those  who,  if  elected,  are  to  carry  it 
out;  and  the  majority  might  reasonably  be  held  to  bind  the 
minority.  The  platform  is  made  after  the  candidates  are 
chosen,  however,  and  in  case  of  an  unwilling  candidate,  there 
would  be  no  effective  way  of  securing  acquiescence  in  the 
program,  either  before  or  after  the  election.  As  compared 
with  a  platform  framed  either  wholly  or  in  part  by  the  party 
committee,  the  candidate  convention  is  far  superior.  Party 
committeemen  are  chosen  to  manage  campaigns  and  conduct 
organization  business,  and  not  for  their  opinions  upon  ques- 
tions of  public  policy  or  their  ability  to  frame  statements  of 
public  policy. 

Under  a  system  which  provides  for  the  selection  of  candi- 
dates by  direct  vote,  the  percentage  of  the  total  vote  necessary 
for  a  choice  is  a  subject  of  considerable  importance.  The 
common  plan  throughout  the  North  and  West  is  to  require 
merely  a  plurality  vote.  The  candidate  receiving  the  highest 
number  of  votes  is  made  the  nominee.  In  the  Southern 
States  a  clear  majority  is  usually  required  and  when  no  can- 
didate receives  the  necessary  vote,  a  second  primary  is  held, 
in  which  the  two  leading  candidates  participate.  As  another 
alternative,  it  may  be  provided,  as  in  Illinois  (1905)  that  in 
case  no  candidate  receives  a  majority  of  all  the  votes  cast,  a 
convention  shall  then  make  the  selection.  In  recent  years, 
provisions  have  been  made  requiring  the  candidates  to  secure 
a  minimum  percentage  of  the  votes  cast;  thus  in  Michigan, 
40  per  cent,  is  required,  in  Iowa  35  per  cent.  Under  the 
Michigan  plan,  if  100,000  votes  are  cast,  there  is  no  nomina- 
tion unless  some  candidate  receives  at  least  40,000  votes.  If 
no  choice  is  made  then  the  convention  must  select  the  can- 
didate. 

Finally,  a  system  of  preferential  vote  has  been  advocated. 
Under  this  plan  the  voter  indicates  his  first  and  second  choices 
for  the  office  and,  in  case  no  candidate  receives  a  majority  of 
first  choices,  the  lowest  candidate  is  dropped  and  his  second 
choices  are  then  distributed.  This  plan  has  been  approved 


384  READINGS  IN  CIVIL  GOVERNMENT 

in  Wisconsin  by  Governor  LaFollette,  but  not  accepted  by 
the  legislature.  A  modified  form  of  it  has  been  adopted  by 
the  State  of  Washington  in  1907.  Where  there  are  more 
than  four  candidates  for  a  State  or  congressional  office,  each 
voter  is  required  to  indicate  first  and  second  choice.  If  no 
candidate  receives  40  per  cent,  of  the  total  vote,  second  choices 
are  then  counted  in  and  a  decision  reached  in  this  way.  .  .  . 
On  the  whole,  it  seems  probable  that  the  simple  plurality 
will  probably  be  adopted  outside  of  the  Southern  States, 
where  peculiar  conditions  prevail.  Experience  has  shown 
that  this  is  a  satisfactory  system,  and  that  it  neither  destroys 
nor  disrupts  the  party.  The  demand  for  a  majority  primary 
or  a' minimum  percentage  is  generally  based  on  unfounded 
apprehension,  rather  than  upon  reason  or  experience.  It 
ignores  the  fact  that  the  number  of  candidates  under  the 
directed  primary  system  is  not  ordinarily  great  and  that 
where  the  number  is  large  the  custom  soon  teaches  acqui- 
escence in  the  nomination  of  the  leading  candidate  in  the 
primary  just  as  it  does  in  the  general  election.  Originally 
choice  by  majority  vote  only  was  the  general  rule,  even  in 
elections,  but  now  a  plurality  is  accepted  and  indeed  never 
challenged.  It  is  likely  that  the  same  process  of  development 
will  take  place  in  the  party  primary. 

74.      THE  SHORT  BALLOT. 

Another  method  of  reducing  the  influence  of  the  politician  in 
elections  and  of  enabling  the  voter  to  exercise  an  intelligent  choice 
through  his  ballot,  is  to  have  fewer  elective  offices.  For  a  few  im- 
portant officers  the  average  man  can  vote  intelligently;  for  many 
unimportant  officers  he  is  very  apt  to  vote  blindly.  In  the  following 
selection  Mr.  R.  S.  Childs  shows  how  absurd  and  unnecessary  it  is 
to  complicate  our  ballots  with  the  names  of  so  many  inconspicuous 
men:  [1909]. 

Starting  at  the  broad  base  of  our  structure,  the  voters,  we 
notice  one  unique  phenomenon  which  is  so  familiar  to  us  that 
we  usually  overlook  it  entirely— that  is,  our  habit  of  voting 
blindly.  Of  course  intelligent  citizens  do  not  vote  without 


PARTY  ORGANIZATION  385 

knowing  what  they  are  doing.  Oh,  no!  You,  Mr.  Reader, 
for  instance,  you  vote  intelligently  always!  Of  course  you 
do!  But  for  whom  did  you  vote  for  Surrogate  last  time? 
You  don't  know?  Well,  then,  whom  did  you  support  for 
State  Auditor?  For  State  Treasurer?  For  Clerk  of  the 
Court?  For  Supreme  Court  Judge?  And  who  is  your  Al- 
derman? Who  represents  your  district  at  the  State  Capitol? 
Name,  please,  all  the  candidates  you  voted  for  at  the  last  elec- 
tion. Of  course  you  know  the  President  and  the  Governor 
and  the  Mayor,  but  there  was  a  long  list  of  minor  officers  be- 
sides. Unless  you  are  active  in  politics  I  fear  you  flunk  this 
examination.  If  your  ballot  had  by  a  printer's  error  omitted 
the  "State  Comptroller"  entirely,  you  would  probably  not 
have  missed  it.  You  ignored  nine-tenths  of  your  ballot,  vot- 
ing for  those  you  did  know  about  and  casting  a  straight  party 
ticket  for  the  rest,  not  because  of  party  loyalty,  but  because 
you  did  not  know  of  anything  better  to  do.  You  need  not 
feel  ashamed  of  it.  Your  neighbors  all  did  the  same;  my 
neighbors  did.1  .  .  .  Ex-President  Eliot,  of  Harvard,  the 
"ideal  citizen,"  confessed  in  a  public  address  recently  that 
he  did  it  too.  Philadelphia  has  even  elected  imaginary  men. 
It  is  a  typical  and  universal  American  attitude.  We  all  vote 
blindly.  The  intelligence  of  the  community  is  not  at  work  on 

i  CONFIDENTIAL  CENSUS 
Data  collected  immediately  after  the  election  of   1908. 

Do  you  know  the  name  of  the  new  State  Treasurer  just 

elected? 87%  said  No. 

Do  you  know  the  name  of  the  present  State  Treasurer?  75%  said  No. 

Do  you  know  the  name  of  the  new  State  Assemblyman 

for  this  district? 70%  said  No. 

Do  you  know  the  name  of  the  defeated   candidate   for 

Assemblyman  in  this  district? 80%  said  No. 

Do  you  know  the  name  of  the  Surrogate  of  this  County?  65%  said  No. 

Do  you  know  the  name  of  your  Alderman?     .      .      .      .85%  said  No. 

Do  you  know  whether  your  Alderman  was  one  of  those 
who  voted  against  the  increase  in  the  Police  Force 
last  year? 98%  said  No. 

Are  you  in  active  politics? 96%  said  No. 

25 


386  READINGS  IN  CIVIL  GOVERNMENT 

any  of  the  minor  offices  on  the  ballot.  The  average  American 
citizen  never  casts  a  completely  intelligent  vote. 

This  is  not  all  the  fault  of  the  voter.  To  cast  a  really  in- 
telligent ballot  from  a  mere  study  of  newspapers,  campaign 
literature  and  speeches  is  impossible,  because  practically  noth- 
ing is  ever  published  about  the  minor  candidates. 

The  gossip  around  the  local  headquarters  being  too  one- 
sided to  be  trusted  by  a  casual  inquirer,  a  deep-working  per- 
sonal acquaintance  with  politics,  involving  years  of  experi- 
ence and  study,  becomes  necessary  before  a  voter  who  wants 
to  cast  a  wholly  intelligent  ballot  can  obtain  the  facts. 

This  is  not  the  fault  of  the  press.  In  New  York  City  the 
number  of  elective  offices  in  State,  city,  and  county  to  be 
filled  by  popular  vote  in  a  cycle  of  four  years  is  nearly  five 
hundred.  In  Chicago  the  number  is  still  greater.  Philadel- 
phia, although  smaller  than  either  city,  elects  more  people 
than  either.  No  newspaper  can  give  publicity  to  so  many  can- 
didates or  examine  properly  into  their  relative  merits. 

Plainly  the  voter  is  overburdened  with  more  questions  than 
he  will  answer  carefully,  for  it  is  certain  that  the  average 
citizen  cannot  afford  the  time  to  fulfill  the  unreasonable  re- 
quirements that  are  now  essential  to  intelligent  voting.  The 
voters  at  the  polls  are  the  foundation  of  a  democracy,  and  the 
universal  and  incurable  habit  of  voting  blindly  constitutes  a 
huge  break  in  that  foundation  which  is  serious  enough  to  ac- 
count for  the  toppling  of  the  whole  structure. 

Let  us  see,  then,  if  we  can  trace  out  a  connection  between 
blind  voting  as  a  cause  and  misgovernment  as  the  effect. 

No  one  will  deny  that  if  nine-tenths  of  the  citizens  refrained 
from  voting  on  election  day,  the  remaining  tenth  would  gov- 
ern all.  And  when  practically  all  vote  in  nine-tenths  igno- 
rance and  indifference,  about  the  same  delegation  of  po\\<  r 
occurs.  A  remaining  fraction  who  do  give  enough  time  to 
the  subject  to  cast  an  intelligent  ballot  take  control.  That 
fraction  we  call  "politicians"  in  our  unique  American  sense 
of  the  word.  A  politician  is  a  "political  specialist."  He  is 
one  who  knows  more  about  the  voter's  political  business  than 


PARTY  ORGANIZATION  387 

the  voter  does.  He  knows,  for  instance,  that  the  coroner's 
term  will  expire  in  November,  and  he  contributes  toward  the 
discussion  involved  in  nominating  a  successor,  whereas  the 
voter  hardly  knows  a  coroner  is  being  elected.  These  poli- 
ticians come  from  all  classes,  and  the  higher  intelligence  of 
the  community  contributes  its  full  quota.  Although  they  are 
only  a  fraction  of  the  electorate,  they  are  a  fair  average  selec- 
tion, and  they  would  give  us  exactly  the  kind  of  government 
we  all  want,  if  only  they  could  remain  free  and  inde- 
pendent personal  units.  But  the  impulse  to  organize  is  irre- 
sistible. Convenience  and  efficiency  require  it,  and  the 
"organization"  springs  up  and  cements  them  together.  Good 
men  who  see  the  organization  go  wrong  on  a  nomination  con- 
tinue to  stay  in  and  to  lend  their  strength,  not  bolting  until 
moral  conditions  become  intolerable.  Were  these  men  not 
bound  by  an  organization  with  its  social  and  other  non-politi- 
cal ties,  their  revolt  would  be  early,  easy  and  effective,  and 
every  bad  nomination  would  receive  its  separate  and  propor- 
tionate punishment  in  the  alienation  of  supporters.  .  . 

The  essence  of  our  complaint  against  our  government  is  that 
it  represents  these  easily  contaminated  political  organiza- 
tions instead  of  the  citizens.  Naturally!  When  practically 
none  but  the  politicians  in  his  district  are  aware  of  his  actions 
or  even  of  his  existence,  the  office-holder  who  refuses  to  bow 
to  their  will  is  committing  political  suicide. 

Sometimes  the  interests  of  the  politician  and  the  people 
are  parallel,  but  sometimes  they  are  not,  and  the  office-holder 
is  apt  to  diverge  along  the  path  of  politics.  An  appointment 
is  made,  partly  at  least,  to  strengthen  the  party,  since  the 
appointee  has  a  certain  following.  A  bill  is  considered,  not 
on  its  simple  merits,  but  on  the  issue,  "Who  is  behind  it?" 
"If  it  is  Boss  Smith,  of  Green  County,  that  wants  it,  what- 
ever his  reasons,  we  must  placate  him  or  risk  disaffection  in 
that  district."  So  appointments  and  measures  lose  their  orig- 
inal and  proper  significance  and  become  mere  pawns  in  a  chess 
game  of  politics  which  aims  to  keep  "our  side"  on  top.  The 
office-holders  themselves  may  be  upright,  bribe-proof  men — 


388  READINGS  IN  CIVIL  GOVERNMENT 

they  usually  are,  in  fact.  But  their  failure  to  disregard  all 
exigencies  of  party  politics  constitutes  misrepresentative  gov- 
ernment, and  Boss  Smith,  of  Green  County,  can  privately 
sell  his  influence  if  he  chooses,  whereby  the  public  is  in  the 
end  a  heavy  sufferer. 

By  the  way,  every  factor  in  this  sequence  is  a  unique 
American  phenomenon !  The  long  ballot  with  its  variegated 
list  of  trivial  offices  is  to  be  seen  nowhere  but  in  the  United 
States.  The  English  ballot  never  covers  more  than  three  of- 
fices, usually  only  one.  In  Canada  the  ballot  is  less  com- 
monly limited  to  a  single  office,  but  the  number  is  never  large, 
and  includes  only  offices  that  are  of  such  importance  as  to  at- 
tract close  scrutiny  by  the  public.  To  any  Englishman  or  Cana- 
dian our  long  ballot  is  astonishing  and  our  blind  voting  ap- 
palling. The  politicians  as  a  professional  class,  separate  from 
popular  leaders  or  office-holders,  are  unknown  in  other  lands, 
and  the  very  word  "  politician "  has  a  special  meaning  of  re- 
proach in  this  country  which  foreigners  do  not  attach  to  it. 
And  government  of  a  democracy  from  behind  the  scenes  by 
politicians  in  endless  opposition  to  government  by  public  opin- 
ion, is  the  final  unique  American  phenomenon  in  the  long  bal- 
lot's train  of  consequences. 

The  blind  vote  of  course  does  not  take  in  the  whole  ballot. 
Certain  conspicuous  offices  engage  the  attention  of  all  of  us. 
We  go  to  hear  the  speeches  of  the  candidates  for  conspicuous 
offices;  those  speeches  are  printed  in  the  daily  papers  and  re- 
viewed in  the  weeklies;  the  candidates  are  the  theme  of  edi- 
torials, and  we  need  take  no  part  in  politics  to  be  able  to  vote 
with  knowledge  on  certain  important  issues.  We  would  laugh 
at  an  attempt  to  control  our  vote  on  any  of  these  questions 
where  we  have  opinions  of  our  own.  With  this  independent 
intelligence  always  at  work  upon  the  major  nominations, 
we  secure  a  higher  normal  level  of  conditions.  Aldermen 
we  elect  who  do  not  represent  us,  and  State  Legislatures 
which  obey  the  influences  of  unseen  powers,  but  we  are  apt  to 
speak  effectively  when  it  comes  to  the  choice  of  a  conspicuous 
officer  like  a  President,  a  Governor,  or  a  Mayor.  For  Mayor, 


PARTY  ORGANIZATION  389 

Governor,  or  President  we  are  sure  to  secure  a  presentable 
figure,  always  honest  and  frequently  an  able  and  independent 
champion  of  the  people  against  the  very  political  interests  that 
nominated  him.  We  are  apt  to  re-elect  such  men,  and  the 
way  we  sweep  aside  hostile  politicians  where  the  issue  is  clear 
shows  how  powerfully  the  tide  of  our  American  spirit  sets 
toward  good  government  when  the  intelligence  of  the  com- 
munity finds  a  channel — witness  Roosevelt,  Taft,  Hughes, 
Deneen,  Folk,  and  a  host  of  mayors.  .  .  . 

In  an  obscure  contest  on  the  blind  end  of  the  ballot,  merit 
has  little  political  value;  but  in  the  conspicuous  contests, 
where  we  actually  compare  man  and  man,  superior  merit  in 
a  nominee  is  a  definite  political  asset.  'Hence,  in  the  case  of 
an  obscure  nomination,  the  tendency  is  automatically  down- 
ward; but  in  a  conspicuous  nomination  (where  all  the  voting 
is  intelligent)  the  tendency  is  upward. 

We  cannot  hope  to  raise  the  political  intelligence  of  our 
citizenship  to  a  level  where  it  will  scrutinize  the  long  ballot 
and  cease  to  vote  blindly  on  most  of  it.  The  mountain  will 
not  come  to  Mahomet;  Mahomet  then  must  go  to  the  moun- 
tain. We  must  shorten  the  ballot  to  a  point  where  the  aver- 
age man  will  vote  intelligently  without  giving  to  politics  more 
attention  than  he  does  at  present.  That  means  making  it 
very  short,  for  if  it  exceeds  by  even  a  little  the  retentive  ca- 
pacity of  the  average  voter's  memory,  the  "political  special- 
ist" is  created.  A  voter  could  remember  the  relative  merits 
of  probably  about  five  sets  of  candidates,  and  could  keep  that 
many  separate  contests  clear  in  his  mind,  but  he  would  prob- 
ably begin  to  vote  blindly  on  more  than  five.  Also  we  must 
take  all  unimportant  offices  off  the  ballot,  since  the  electorate 
will  not  bother  with  such  trifles  whether  the  ballot  be  short  or 
not.  Why,  indeed,  should  fifty  thousand  voters  all  be  asked 
to  pause  for  even  a  few  minutes  apiece  to  study  the  relative 
qualifications  of  Smith  and  Jones  for  the  petty  post  of  County 
Surveyor?  An  intelligent  citizen  may  properly  have  bigger 
business ! 

To  be  pictorial,  let  us  see  how  a  revised  schedule  of  elec- 


390  READINGS  IN  CIVIL  GOVERNMENT 

tions  might  look  if  we  put  into  the  realm  of  appointive  offices 
as  many  as  possible  of  those  which  we  now  ignore.  All  county 
offices,  many  city  positions,  and  the  tail  of  the  State  ticket 
would  thus  be  disposed  of,  and  the  ballots  might  look  some- 
what like  this  (New  York  State  titles)  : 


First  year. 
President  and 
Vice-President 
(four  years) 

Congressman 
(two  years) 
City 
Councilman 
(two  years) 

Second  year. 
Governor 
(four  years) 

State 
Assemblyman 
(two  years) 

Third  year. 
Congressman 
(two  years) 

Mayor 
(four  years) 

City 
Councilman 
(two  years) 

Fourth  year. 
State  Senator 
(four  years) 

State 
Assemblyman 
(two  years) 

This  is  merely  organizing  the  State  and  city  as  simply  as 
the  Federal  Government.  There  is  endless  room  for  discus- 
sion on  the  details,  and  many  other  arrangements  could  be 
devised.  This  schedule  provides  for  every  office  which  must 
be  kept  within  the  realm  of  politics.  It  provides  short  bal- 
lots which  every  man  would  vote  intelligently  without  calling 
on  a  political  specialist  to  come  and  guide  his  pencil. 

On  such  a  short  ballot  basis  the  entry  of  our  best  men  into 
public  life  becomes  possible.  To-day  the  retired  business  man, 
for  instance,  who  is  willing  to  devote  his  trained  mind  and 
proven  executive  ability  to  the  service  of  his  city  finds  it  dif- 
ficult to  enter  public  life  even  as  a  humble  alderman.  He 
cannot  win  as  an  independent,  for  the  voters  do  not  distin- 
guish his  voice  in  the  political  hubbub.  He  must  get  his 
name  on  the  ticket  of  the  dominant  party,  which  can  elect 
him  regardless  of  whether  he  makes  a  fierce  campaign  or  re- 
mains silent  on  every  issue.  In  seeking  this  nomination,  di- 
rect primaries  will  help  him  a  little,  but  in  the  confusion  at- 
tending the  making  of  nominations  for  a  multitude  of  offices 
he  is  again  unable  to  attract  much  attention,  and  the  "  ma- 
chine" swinging  its  solid  blocks  of  well-drilled  voters  to  the 
support  of  some  loyal  old-time  pillar  of  the  "  organization, " 
is  likely  to  defeat  him  despite  his  manifest  superiority  of 


PARTY  ORGANIZATION  391 

character.  His  only  hopeful  resort  is  to  go  down  into  the 
unfamiliar  and  uncongenial  shaded  underworld  of  ward  poli- 
tics, kotow  to  district  leaders  and  captains  whose  social  and 
business  standing  is  perhaps  inferior  to  his  own,  and  satisfy 
their  queries,  "What  have  you  done  for  the  party?"  and 
"What  will  you  do  for  us?"  Such  procedure  being  at  least 
distasteful  and  probably  stultifying,  his  activities  turn  to- 
ward philanthropies  and  recreations.  The  city  has  thus  re- 
fused his  proffered  services,  has  turned  away  the  man  who 
considered  the  office  as  an  opening  for  civic  usefulness  in 
favor  of  one  who  probably  wanted  it  as  a  good  job. 

But  if  he  be  conspicuous  as  an  important  and  almost  soli- 
tary figure  before  his  prospective  constituents,  such  a  candi- 
date can  easily  get  a  satisfactory  hearing,  and  his  superior 
merit  will  be  an  all-important  asset  to  him.  In  such  a  sim- 
ple situation  the  "ward  politician"  has  no  function.  Every 
ordinary  voter  is  a  complete  politician  too.  The  party  boss- 
let  who  prates  of  "regularity"  will  find  the  voter  replying 
with  facts  regarding  the  personality  and  principles  of  the 
candidate,  and  the  discussion  shifts  to  a  new  level.  If  the 
politician  can  win  over  the  voter  on  that  level  well  and  good. 
That  is  leadership,  not  bossism,  and  is  unobjectionable. 

ADDITIONAL  READINGS 

1 — State  Party  Organization,  Macy,  J.,  Party  Organization 

and  Machinery,  96-110. 
2— The  National  Committee,  Ibid.,  65-86. 
3 — Participation  of  the  People  in  City  Government,  Goodnow, 

F.  J.,  City  Government  in  the  United  States,  109-36. 
4 — The  Nominating  Convention  at  Work,  Bryce,  J.,  American 

Commonwealth,  II,  185-202. 
5 — Practical  Working  of  the  Direct  Primary  System,  Mer- 

riam,  C.  E.,  Primary  Elections,  117-132. 
6 — Are  too  Many  Executive  Offices  Elective,  Thompson,  M.  B., 

Michigan  Law  Review,  VI,  228-36. 
7 — Presidential  Leadership,  Macy,  J.,  Party  Organization  and 

Machinery,  25-42. 


PART  III 
THE  FUNCTIONS  OF  GOVERNMENT 

CHAPTER  XVII 
INDIVIDUAL  FREEDOM  AND  LAW 

75.   PERSONAL  LIBERTY  VS.  GOVERNMENTAL  AUTHORITY. 

Constitutional  government  implies  that  a  certain  limit  be  set  to 
the  interference  by  the  government  with  the  personal  freedom  of 
the  individual.  Of  course  there  must  be  some  interference  by  the 
government  with  what  the  individual  may  regard  as  his  personal 
liberty  or  there  could  be  no  government;  but  it  is  equally  manifest 
that  there  must  be  some  fixed  and  positive  limit  to  this  interference 
else  there  is  no  personal  freedom — no  constitutional  government. 
Where  shall  this  limit  be  fixed  t  What  are  the  functions  which  the 
government  must  exercise  in  order  to  maintain  its  existence,  and  what 
are  the  powers  from  which  the  government  must  hold  its  hand  in 
order  that  the  freedom  of  the  individual  be  not  destroyed?  John 
Stuart  Mill  in  his  Essay  on  Libeity,  written  some  fifty  years  ago, 
is  the  champion  of  the  liberty  of  the  individual : 

The  struggle  between  Liberty  and  Authority  is  the  most 
conspicuous  feature  in  the  portions  of  history  with  which  we 
are  earliest  familiar,  particularly  in  that  of  Greece,  Rome,  and 
England.  But  in  old  times  this  contest  was  between  subjects, 
or  some  classes  of  subjects,  and  the  government.  By  liberty, 
was  meant  protection  against  the  tyranny  of  the  political 
rulers.  The  rulers  were  conceived  (except  in  some  of  the 
popular  governments  of  Greece)  as  in  a  necessarily  antagonis- 
tic position  to  the  people  whom  they  ruled.  They  consisted 
of  a  governing  One,  or  a  governing  tribe  or  caste,  who  de- 

392 


INDIVIDUAL  FREEDOM  AND  LAW  393 

rived  their  authority  from  inheritance  or  conquest;  who,  at 
all  events,  did  not  hold  it  at  the  pleasure  of  the  governed,  and 
whose  supremacy  men  did  not  venture,  perhaps  did  not  de- 
sire, to  contest,  whatever  precautions  might  be  taken  against 
its  oppressive  exercise.  Their  power  was  regarded  as  neces- 
sary; but  also  as  highly  dangerous;  as  a  weapon  which  they 
would  attempt  to  use  against  their  subjects,  no  less  than 
against  external  enemies.  To  prevent  the  weaker  members 
of  the  community  from  being  preyed  upon  by  innumerable 
vultures,  it  was  needful  that  there  should  be  an  animal  of 
prey  stronger  than  the  rest,  commissioned  to  keep  them  down. 
But  as  the  king  of  the  vultures  would  be  no  less  bent  upon 
preying  on  the  flock  than  any  of  the  minor  harpies,  it  was  in- 
dispensable to  be  in  a  perpetual  attitude  of  defence  against 
his  beak  and  claws.  The  aim,  therefore,  of  patriots,  was  to  set 
limits  to  the  power  which  the  ruler  should  be  suffered  to  ex- 
ercise over  the  community ;  and  this  limitation  was  what  they 
meant  by  liberty.  It  was  attempted  in  two  ways.  First,  by 
obtaining  a  recognition  of  certain  immunities,  called  political 
liberties  or  rights,  which  it  was  to  be  regarded  as  a  breach 
of  duty  in  the  ruler  to  infringe,  and  which,  if  he  did  infringe, 
specific  resistance,  or  general  rebellion,  was  held  to  be  justifia- 
ble. A  second,  and  generally  a  later  expedient  was  the  es- 
tablishment of  constitutional  checks;  by  which  the  consent 
of  the  community,  or  of  a  body  of  some  sort  supposed  to  rep- 
resent its  interests,  was  made  a  necessary  condition  to  some 
of  the  more  important  acts  of  the  governing  power.  To  the 
first  of  these  modes  of  limitation,  the  ruling  power,  in  most 
European  countries,  was  compelled,  more  or  less,  to  submit. 
It  was  not  so  with  the  second;  and  to  attain  this,  or  when 
already  in  some  degree  possessed,  to  attain  it  more  completely, 
became  everywhere  the  principal  object  of  the  lovers  of  lib- 
erty. And  so  long  as  mankind  were  content  to  combat  one 
enemy  by  another,  and  to  be  ruled  by  a  master,  on  condition 
of  being  guaranteed  more  or  less  efficaciously  against  his 
tyranny,  they  did  not  carry  their  aspirations  beyond  this 
point. 


394  READINGS  IN  CIVIL  GOVERNMENT 

A  time,  however,  came,  in  the  progress  of  human  affairs, 
when  men  ceased  to  think  it  a  necessity  of  nature  that  their 
governors  should  be  an  independent  power,  opposed  in  inter- 
est to  themselves.  It  appeared  to  them  much  better  that  the 
various  magistrates  of  the  State  should  be  their  tenants  or 
delegates,  revocable  at  their  pleasure.  In  that  way  alone,  it 
seemed,  could  they  have  complete  security  that  the  powers 
of  government  would  never  be  abused  to  their  disadvantage. 
By  degrees,  this  new  demand  for  elective  and  temporary 
rulers  became  the  prominent  object  of  the  exertions  of  the 
popular  party,  wherever  any  such  party  existed;  and  super- 
seded, to  a  considerable  extent,  the  previous  efforts  to  limit 
the  power  of  rulers.  As  the  struggle  proceeded  for  making 
the  ruling  power  emanate  from  the  periodical  choice  of  the 
ruled,  some  persons  began  to  think  that  too  much  importance 
had  been  attached  to  the  limitation  of  the  power  itself.  TJiat 
(it  might  seem)  was  a  resource  against  rulers  whose  interests 
were  habitually  opposed  to  those  of  the  people.  What  was 
now  wanted  was,  that  the  rulers  should  be  identified  with  the 
people ;  that  their  interest  and  will  should  be  the  interest  and 
will  of  the  nation.  The  nation  did  not  need  to  be  protected 
against  its  own  will.  There  was  no  fear  of  its  tyrannizing 
over  itself.  Let  the  rulers  be  effectually  responsible  to  it, 
promptly  removable  by  it,  and  it  could  afford  to  trust  them 
with  power  of  which  it  could  itself  dictate  the  use  to  be  made. 
Their  power  was  but  the  nation 's  own  power,  concentrated, 
and  in  a  form  convenient  for  exercise.  .  .  . 

The  notion  that  the  people  have  no  need  to  limit  their 
power  over  themselves,  might  seem  axiomatic,  when  popular 
government  was  a  thing  only  dreamed  about,  or  read  of  as 
having  existed  at  some  distant  period  of  the  past.  .  .  . 
In  time,  however,  a  democratic  republic  came  to  occupy  a  large 
portion  of  the  earth's  surface,  and  made  itself  felt  as  one  of 
the  most  powerful  members  of  the  community  of  nations; 
and  elective  and  responsible  government  became  subject  to 
the  observations  and  criticisms  which  wait  upon  a  great  ex- 
isting fact.  It  was  now  perceived  that  such  phrases  as  "self- 


INDIVIDUAL  FREEDOM  AND  LAW  395 

government,"  and  "the  power  of  the  people  over  themselves," 
do  not  express  the  true  state  of  the  case.  The  ' '  people ' '  who 
exercise  the  power,  are  not  always  the  same  people  with  those 
over  whom  it  is  exercised,  and  the  "self-government"  spoken 
of,  is  not  the  government  of  each  by  himself,  but  of  each  by 
all  the  rest.  The  will  of  the  people,  moreover,  practically 
means,  the  will  of  the  most  numerous  or  the  most  active  part 
of  the  people;  the  majority,  or  those  who  succeed  in  making 
themselves  accepted  as  the  majority:  the  people,  consequently, 
may  desire  to  oppress  a  part  of  their  number;  and  precau- 
tions are  as  much  needed  against  this,  as  against  any  other 
abuse  of  power.  The  limitation,  therefore,  of  the  power  of 
government  over  individuals,  loses  none  of  its  importance 
when  the  holders  of  power  are  regularly  accountable  to  the 
community,  that  is,  to  the  strongest  party  therein.  This  view 
of  things,  recommending  itself  equally  to  the  intelligence  of 
thinkers  and  to  the  inclination  of  those  important  classes  in 
European  society  to  whose  real  or  supposed  interests  democ- 
racy is  adverse,  has  had  no  difficulty  in  establishing  itself; 
and  in  political  speculations  "the  tyranny  of  the  majority" 
is  now  generally  included  among  the  evils  against  which  so- 
ciety requires  to  be  on  its  guard.  .  .  . 

In  England,  from  the  peculiar  circumstances  of  our  po- 
litical history,  though  the  yoke  of  opinion  is  perhaps  heavier, 
that  of  law  is  lighter,  than  in  most  other  countries  of  Europe ; 
and  there  is  considerable  jealousy  of  direct  interference,  by 
the  legislative  or  the  executive  power  with  private  conduct; 
not  so  much  from  any  just  regard  for  the  independence  of 
the  individual,  as  from  the  still  subsisting  habit  of  looking 
on  the  government  as  representing  an  opposite  interest  to  the 
public.  The  majority  have  not  yet  learnt  to  feel  the  power 
of  the  government  their  power,  or  its  opinions  their  opinions. 
When  they  do  so,  individual  liberty  will  probably  be  as  much 
exposed  to  invasion  from  the  government,  as  it  already  is 
from  public  opinion.  But,  as  yet,  there  is  a  considerable 
amount  of  feeling  ready  to  be  called  forth  against  any  at- 
tempt of  the  law  to  control  individuals  in  things  which  they 


396  HEADINGS  IN  CIVIL  GOVERNMENT 

have  not  hitherto  been  accustomed  to  be  controlled  by  it ;  and 
this  with  very  little  discrimination  as  to  whether  the  matter 
is,  or  is  not,  within  the  legitimate  sphere  of  legal  control, 
insomuch  that  the  feeling,  highly  salutary  on  the  whole,  is 
perhaps  quite  as  often  misplaced  as  well  grounded  in  the  par- 
ticular instances  of  its  application.  There  is,  in  fact,  no  rec- 
ognized principle  by  which  the  propriety  or  impropriety  of 
government  interference  is  customarily  tested.  People  decide 
according  to  their  personal  preferences.  Some,  whenever 
they  see  any  good  to  be  done,  or  evil  to  be  remedied,  would 
willingly  instigate  the  government  to  undertake  the  business 
while  others  prefer  to  bear  almost  any  amount  of  social  evil, 
rather  than  add  one  to  the  departments  of  human  interests 
amenable  to  the  governmental  control.  And  men  range  them- 
selves on  one  or  the  other  side  in  any  particular  case,  according 
to  this  general  direction  of  their  sentiments;  or  according  to 
the  degree  of  interest  which  they  feel  in  the  particular  thing 
which  it  is  proposed  that  the  government  should  do;  or  ac- 
cording to  the  belief  they  entertain  that  the  government 
would,  or  would  not,  do  it  in  the  manner  they  prefer;  but 
very  rarely  on  account  of  any  opinion  to  which  they  con- 
sistently adhere,  as  to  what  things  are  fit  to  be  done  by  a  gov- 
ernment. And  it  seems  to  me  that,  in  consequence  of  this 
absence  of  rule  or  principle,  one  side  is  at  present  as  often 
wrong  as  the  other;  the  interference  of  government  is,  with 
about  equal  frequency,  improperly  invoked  and  improperly 
condemned. 

The  object  of  this  Essay  is  to  assert  one  very  simple  princi- 
ple, as  entitled  to  govern  absolutely  the  dealings  of  society 
with  the  individual  in  the  way  of  compulsion  and  control, 
whether  the  means  used  be  physical  force  in  the  form  of  legal 
penalties,  or  the  moral  coercion  of  public  opinion.  That  prin- 
ciple is,  that  the  sole  end  for  which  mankind  are  warranted, 
individually  or  collectively,  in  interfering  with  the  liberty  of 
action  of  any  of  their  number,  is  self -protection.  That  the 
only  purpose  for  which  power  can  be  rightfully  exercised  over 
any  member  of  a  civilized  community,  against  his  will,  is  to 


INDIVIDUAL  FREEDOM  AND  LAW  397 

prevent  harm  to  others.  His  own  good,  either  physical  or 
moral,  is  not  a  sufficient  warrant.  He  cannot  rightfully  be 
compelled  to  do  or  forbear  because  it  will  be  better  for  him 
to  do  so,  because  it  will  make  him  happier,  because,  in  the 
opinions  of  others,  to  do  so  would  be  wise,  or  even  right. 
These  are  good  reasons  for  remonstrating  with  him,  or  reason- 
ing with  him,  or  persuading  him  or  entreating  him,  but  not 
for  compelling  him,  or  visiting  him  with  any  evil,  in  case  he 
do  otherwise.  To  justify  that,  the  conduct  from  which  it  is 
desired  to  deter  him  must  be  calculated  to  produce  evil  to  some 
one  else.  The  only  part  of  the  conduct  of  any  one,  for  which 
he  is  amenable  to  society,  is  that  which  concerns  others.  In 
the  part  which  merely  concerns  himself,  his  independence  is, 
of  right,  absolute.  Over  himself,  over  his  own  body  and 
mind,  the  individual  is  sovereign. 

76.    THE    NON-ESSENTIAL    FUNCTIONS   OF    GOVERNMENT. 

Professor  W.  W.  Willoughby  in  his  book  on  the  Nature  of  the 
State  distinguishes  between  "essential"  and  "non-essential"  functions 
of  government  and  holds  that  the  state  is  justified  in  exercising  the 
latter : * 

The  refutation  of  the  individualistic  doctrines,  .  .  . 
leads  necessarily  to  the  assumption  that  the  State  may,  in 
certain  cases,  properly  exercise  powers  other  than  those  that 
are  necessary  for  its  mere  existence  and  the  maintenance  of 
order.  These  other  functions  we  term  "  non-essential "  or 
"common  welfare"  functions.  They  include  in  general  the 
economic,  industrial  and  moral  interests  of  the  people.  They 
are  the  activities  assumed  by  the  State,  not  because  their 
exercise  is  a  sine  qua  non  of  the  State 's  existence,  but  because 
their  public  administration  is  supposed  to  be  advantageous 
to  the  people.  They  are  such  that  if  left  in  private  hands 
would  either  not  be  performed  at  all,  or  poorly  performed. 

The  determination  of  just  what  powers  shall  be  assumed 
by  the  State,  is  solely  one  of  expediency,  and  as  such  lies 

i  See  above  page  111,  note. 


398  READINGS  IN  CIVIL  GOVERNMENT 

within  the  field  of  Politics  or  the  Art  of  Government  and  not 
within  the  domain  of  political  theory.  For  this  reason  we  are 
not  here  called  upon  to  discuss  the  utilitarian  arguments  pro 
and  contra,  upon  which  the  public  control  of  this  or  that  inter- 
est is  to  be  defended  or  opposed.  In  each  instance  the  partic- 
ular circumstances  of  the  case  must  determine  whether  or  not 
the  advantages  to  be  derived  from  the  public  control  in  a  par- 
ticular case  are  more  than  offset  by  the  weakening  of  the  self- 
reliance  of  the  people,  by  the  encroaching  upon  their  persona] 
freedom,  by  the  opening  of  the  way  to  corrupt  influences  in 
government,  or  by  the  creating  of  precedents  for  the  assump- 
tion of  activities  by  the  State  that  will  be  detrimental  to  the 
general  interests.  This  is  practically  the  rule  followed  by  all 
modern  civilized  States. 

In  accepting  this  broad  utilitarian  basis  for  the  State's  ac- 
tion, as  including  every  activity  that  may  in  any  way  pro- 
mote the  general  welfare,  the  greatest  latitude  of  individual 
opinion  is  permitted  as  to  just  what  public  functions  will 
subserve  this  end.  According  to  the  weight  given  to  the  vari- 
ous arguments  for  and  against  State  action  one  may  differ 
little  in  practice  from  the  limited  policy  dictated  by  the  indi- 
vidualist, or  from  the  extreme  doctrine  of  the  socialist  or 
even  the  communist.  The  only  point  here  insisted  upon  is 
that  there  is  no  a  priori  or  fixed  limit  which  can  be  placed  to 
governmental  activity,  but  that  the  assumption  of  each  func- 
tion must  rest  upon  its  own  utilitarian  basis.  .  .  . 

By  a  necessary  course  of  events  the  trend  has  been  towards 
the  assumption  by  the  State  of  new  functions  in  the  control 
and  regulation  of  industrial  life;  and  the  same  causes  that 
have  operated  in  the  past  will  continue  to  have  their  effect 
in  the  future.  As  industrial  society  develops,  and  increases 
in  coherence  and  complexity,  the  social  interests — those  affect- 
ing the  people  in  general — will  become  more  numerous  and 
important,  and  enlightened  utilitarianism  will  demand  tlu» 
subordination  of  individual  interests  to  the  general  weal  of 
the  community.  .  .  .  It  is  not  necessary  to  recite  here  the 
numerous  and  important  instances  during  comparatively  re- 


INDIVIDUAL  FREEDOM  AND  LAW  399 

cent  years  in  which  the  State  has  widened  her  boundaries  un- 
der the  impelling  influence  of  the  causes  which  we  have 
enumerated.  If  one  were  asked  to  characterize  in  a  single 
sentence  the  development  of  government  during  the  present 
century,  it  could  not  be  better  done  than  by  describing  such 
development  as  one  wherein  the  purely  political  duties  of  the 
State  have  become  progressively  less  important  as  compared 
with  its  other  functions. 

In  the  United  States,  the  extent  to  which  matters  of  public 
interest  are  economic  in  character  is  especially  apparent. 
With  arduous  labor,  our  enterprising  news  journals  are  able 
to  arouse  occasional  excitement  on  the  part  of  the  people  in 
regard  to  items  of  our  foreign  relations,  but  as  a  matter  of 
fact,  public  matters  of  purely  political  import  seldom  arise. 
Matters  connected  with  the  maintenance  of  domestic  tran- 
quillity, and  defence  from  foreign  aggression  or  wrong  enter 
but  slightly  into  our  general  thought.  Our  legislatures  are 
mainly  concerned  with  economic  matters,  such  as  the  levying 
of  proper  import  duties,  with  the  control  of  trusts,  with  prob- 
lems connected  with  railroads,  with  interstate  commerce,  with 
the  assessment  of  taxes,  with  the  provision  of  proper  circulat- 
ing currency,  and  the  maintenance  of  sufficient  banking  facil- 
ities. 

The  extent  to  which  this  movement  has  already  gone  is 
evidenced  by  a  comparison  of  the  history  of  the  last  century 
with  that  of  the  latter  half  of  the  present.  Then,  history  was 
little  but  the  record  of  purely  political  events;  of  wars,  of 
treaties  of  offence  and  defence,  of  the  settlement  of  dynastic 
or  territorial  disputes,  of  struggles  of  factions  for  the  posses- 
sion of  political  power,  and  of  the  maintenance  of  public 
order.  Now,  the  pages  of  our  history,  when  they  shall  be 
written,  will  be  largely  filled  with  the  record  of  industrial 
growth,  the  negotiations  of  commercial  treaties,  and  of  the  de- 
velopment of  this  or  that  phase  of  economic  life.  .  .  . 

Now  we  may  ask  ourselves,  whether  or  not  the  facts  and 
the  reasoning  which  have  preceded,  point  necessarily  to  ulti- 
mate socialism  ?  To  this  a  categorical  answer  cannot  be  given. 


400  READINGS  IN  CIVIL  GOVERNMENT 

They  do  point,  undoubtedly,  to  an  inevitable  extension  of  the 
State's  activities  far  beyond  those  at  present  exercised.  But 
in  considering  the  bearing  of  an  increase  in  State  activity 
upon  this  question,  it  is  to  be  noticed  that  not  every  assump- 
tion by  the  State  of  a  new  function  is  a  step  towards  so- 
cialism. 

This  is  a  very  important  point.  We  have  already  made  the 
distinction  between  essential  and  non-essential  duties  of  the 
State.  The  assumption  by  the  State  of  a  power  in  this  latter 
field  is  ordinarily  termed  socialistic,  but  not  properly  so. 
Further  consideration  shows  that  this  analysis  of  govern- 
mental functions  may  be  carried  one  step  farther.  The  non- 
essential  optional  duties  may  themselves  be  grouped  under 
two  distinct  heads,  which  may  be  termed  " socialistic"  and 
"  non-socialistic ' '  respectively.  The  socialistic  duties  properly 
comprehend  only  activities  which  could  be  exercised  by  the 
people  if  left  to  their  private  initiative.  Therefore,  their  as- 
sumption by  the  State,  is,  to  that  extent,  a  curtailment  of  the 
industrial  freedom  of  the  people.  Examples  of  socialistic 
duties  are  the  ownership  and  operation  by  the  State  of  rail- 
roads, of  canals  or  of  telegraph  lines;  the  ownership  by  the 
city  of  gas,  water  and  electric  light  works,  and  the  provision 
of  model  tenement  houses  for  the  poor  by  the  public  authori- 
ties. These,  it  will  be  seen,  admit  of  private  management, 
and,  in  fact,  are,  in  this  country,  very  generally  attended  to 
by  private  enterprise. 

Under  the  non-socialistic  duties  of  the  government  are  in- 
cluded those  which  if  not  assumed  by  the  State  would  not  be 
exercised  at  all.  They  are  duties  not  essential  to  the  State's 
existence,  and  yet,  from  their  very  nature,  not  likely  or  even 
possible  of  performance  by  private  parties.  Such  duties  as 
these  are  therefore  not  socialistic,  because  their  public  as- 
sumption does  not  limit  the  field  of  private  enterprise,  nor 
in  any  way  interfere  with  private  management  of  any  sort  of 
industry.  As  a  rule,  they  are  powers  educational  in  char- 
acter rather  than  coercive,  directive  rather  than  controlling. 
Under  this  head  come  all  those  administrative  duties  that 


INDIVIDUAL  FREEDOM  AND  LAW  401 

are  of  an  investigating,  statistical  character,  and  consist  not 
in  the  interference  with  industry,  but  in  the  study  of  condi- 
tions and  the  diffusion  of  the  information  thus  obtained. 
Work  of  this  kind  is  that  performed  by  the  United  States 
Departments  of  Labor  and  of  Agriculture,  by  the  Bureau  of 
Education,  the  Fish  Commission,  the  Coast  and  Geodetic  Sur- 
vey, by  the  Decennial  Censuses,  etc.  Public  libraries  and 
reading-rooms,  boards  of  health,  the  provision  of  public  parks, 
and  certain  branches  of  education  also  come  under  this  head. 

Likewise  of  this  character  is  that  large  class  of  govern- 
mental duties,  that  we  have  before  mentioned,  the  exercise 
of  which  results  in  the  raising  of  the  plane  of  competition, 
rather  than  destroying  it.  Thus,  when  we  consider  closely, 
we  see  to  what  a  very  large  degree  the  increase  of  governmental 
activity  during  the  present  century  has  been  in  this  non- 
socialistic  field.  Furthermore,  we  discover  that  indications 
seem  to  point  to  this  same  field  as  the  one  to  which  the  con- 
tinued extension  of  the  sphere  of  the  State  will  probably  be 
largely  confined.  The  effect  of  the  exercise  of  these  duties  is 
not  to  check  or  even  to  regulate  competition.  Their  purpose 
is  not  to  interfere  with  the  struggle  for  existence  and  the 
survival  of  the  fittest,  but  to  transform  the  environment,  and, 
by  diffusing  sounder  information  concerning  the  character  of 
the  conditions  and  the  nature  of  the  forces  with  which  man  is 
surrounded,  to  render  it  possible  for  him  either  to  harmonize 
his  efforts  with  them,  or  to  direct  his  strength  and  intellect  to  a 
modification  of  them.  In  fine,  to  increase  his  opportunities. 

In  the  field  of  socialistic  duties,  the  greatest  extension  of 
the  State's  powers  will  probably  be  seen  in  the  ultimate  own- 
ership and  operation  by  the  State  or  municipalities  of  all  those' 
industries  termed  "natural  monopolies" — the  railroads,  gas, 
water  and  electric  light  plants,  street  transit  facilities,  etc. 
Economists  of  the  present  school  have  generally  advocated  the 
public  ownership  of  these  "natural  monopolies,"  and  have 
laid  stress  upon  the  fact  that,  as  they  claim,  socialistic  prece- 
dents are  not  thereby  established,  basing  this  view  upon  the 
statement  that  it  is  only  in  this  class  of  industries,  which  are 


402  READINGS  IN  CIVIL  GOVERNMENT 

not  amenable  to  the  healthy  influence  of  competition,  that 
there  will  ever  arise  the  necessity  for  State  management. 
This  allegation  served  for  a  time  as  a  fair  argument,  but  the 
recent  development  of  gigantic  trusts,  which  have  largely  re- 
moved from  competitive  influences  the  production  of  a  very 
considerable  number  of  commodities  whose  production  is  not 
1 '  naturally "  monopolistic,  has  greatly  weakened  this  economic 
distinction.  As  has  been  before  said,  this  phase  of  industrial 
development  is  as  yet  so  new,  that  it  is  not  yet  determined 
whether  their  influence  will  be  ultimately  for  the  public  good 
or  not.  Should  these  capitalistic  aggregates  prosper  and 
prove  lucrative  to  their  individual  owners,  but,  from  the  ex- 
tent of  their  power  of  controlling  trade,  tend  to  exert  an  in- 
fluence detrimental  to  society  at  large  state  intervention  would 
become  a  necessity.  Should  simply  legislative  control  be 
found  insufficient  for  their  regulation,  the  assumption  of  the 
production  of  these  commodities  by  the  State  itself  would 
seem  to  be  necessary,  and  this  would  be  a  very  long  step  to- 
wards socialism. 

77.    GOVERNMENTAL   ENTERPRISE   IN   THE  NON-ESSENTIAL 
FUNCTIONS. 

The  government  of  the  United  States  has  not  been  guided  by  the 
let-alone  policy  advocated  by  John  Stuart  Mill.  On  the  contrary, 
it  has  followed  a  utilitarian  policy  and  has  already  entered  quite 
extensively  into  the  field  of  what  Professor  Willoughby  terms  the 
''industrial"  or  "general  welfare"  functions.  That  this  is  true  is 
seen  from  the  following  statement  by  Mr.  John  Martin  of  the  ''so- 
cialistic" activities  of  our  government:  [1908]. 

Democracy  in  this  country  has  acted  socialistically  *  and 
communistically  to  a  degree  which  few  Americans  realize. 
From  early  days  the  individual  liberty  of  the  poor  man  to 
go  without  roads,  to  keep  his  children  from  school,  to  poison 
the  streams  with  typhoid  germs,  to  carry  a  gun  and  adminis- 
ter his  own  justice,  or  to  sell  liquor,  has  been  restricted  for  the 

*Mr.  Martin  uses  the  word  socialism  in  its  broad  sense  to  denote  a 
wide  range  of  activities  beyond  those  that  pertain  to  the  individual. 


INDIVIDUAL  FREEDOM  AND  LAW  403 

common  good  by  methods  which  are  socialistic.  Gradually 
the  practical  man,  heedless  of  theories,  faced  by  new  prob- 
lems, has  adopted  in  America  more  and  more  of  the  socialistic 
method  until  to-day  it  is  a  most  important  factor  in  local, 
state,  and  national  life. 

Besides  our  international  relations,  the  army,  the  navy,  and 
courts  of  justice,  the  National  Government  now  conducts  the 
post-office,  coinage,  regulation  of  the  currency  and  note-issue, 
ship-building,  ship-repairing  and  its  own  banking.  It  lights 
the  coast  and  deepens  harbors  and  rivers  with  so  much  na- 
tional benefit  that  a  strong  movement  is  on  foot  for  the  ex- 
penditure of  hundreds  of  millions  in  making  a  waterway 
from  the  Gulf  of  Mexico  to  the  Great  Lakes,  and  a  still-water 
route  on  the  Atlantic  Coast.  Recently  private  contractors 
broke  down  in  dredging  the  new  channel  past  Sandy  Hook 
in  New  York  Harbor.  But  the  Government,  reckless  of  the 
musty  proofs  that  it  could  not  possibly  manage  any  business 
enterprise,  went  ahead  with  the  work  itself;  and,  before  the 
estimated  time  had  elapsed,  ocean  liners  traversed  the  chan- 
nel. The  National  Government,  furthermore,  carries  on  and 
publishes  its  own  researches  in  geology,  meteorology,  statis- 
tics, zoology  and  geography.  Every  one  of  these  functions, 
including  those  of  the  army,  navy  and  courts  of  justice,  was 
in  some  countries  at  one  time  left  to  private  enterprise  and 
was  financed  by  individual  investments.  .  .  . 
.  In  few  of  our  larger  activities  are  socialistic  methods  more 
in  evidence  than  in  the  industries  related  to  agriculture.  The 
farming  class  constitutes  the  largest  body  of  voters  in  Amer- 
ica, and  industrially  their  work  is  the  most  important.  For 
aiding  them  in  their  labors,  a  perfection  of  communism  has 
been  attained  of  which  few  Americans  are  aware.  Whatever 
puzzling  emergency  confronts  the  farmer,  he  can  summon 
expert  aid  to  give  him  all  that  science  and  experience  can  fur- 
nish to  enable  him  to  meet  it.  The  National  Department  of 
Agriculture,  assisted  by  the  State  Department,  stands  ready 
to  show  him  what  crops  to  grow  and  how  to  grow  them; 
what  animals  to  breed  and  how  to  breed  and  tend  them; 


404  HEADINGS  IN  CIVIL  GOVERNMENT 

what  trees  to  plant  and  how  to  care  for  them ;  how  to  produce 
the  best  butter  and  cheese,  and  the  way  to  market  them. 
This  paternalistic  department  is  responsible  for  the  intro- 
duction into  this  country  of  sorghum,  a  crop  now  worth  $40,- 
000,000  a  year;  Durum  wheat,  worth  $10,000,000  annually; 
alfalfa,  one  of  our  most  important  crops;  the  navel  orange, 
worth  many  breakfast  foods;  Japanese  rice  and  bamboo;  the 
Corsican  citron;  the  Indian  mango;  the  Bohemian  horse-rad- 
ish; the  German  brew  barleys;  Spanish  almonds;  French 
prunes;  Chinese  mustard,  and  Egyptian  cotton.  In  three 
years,  four  thousand  novelties  have  been  brought  to  this  un- 
suspecting land  by  a  socialistic  department.  During  last 
year,  laboratories  were  established  at  Baltimore  and  at  New 
Orleans  for  the  purpose  of  examining  and  reporting  upon  the 
condition  of  any  consignment  of  seed  or  grain,  and  an  agent 
will  be  stationed  at  foreign  ports  to  examine  cargoes  on  their 
arrival  from  this  country.  Also  outside  of  the  United  States 
exploration  work  is  carried  on.  This  has  recently  esulted  in 
the  introduction  of  a  seedless  hardy  persimmon,  a  hardy  wild 
apricot,  a  new  hardy  peach,  soft-shelled  walnuts,  varieties  of 
Chinese  grapes,  an  edible  fruited  hawthorn,  and  edible 
kernelled  apricots — to  mention  only  a  few  aliens  which  are 
being  naturalized. 

The  best  known  and  perhaps  the  most  valuable  work  which 
the  Departments  of  Agriculture,  federal  and  state,  have  done, 
is  in  overcoming  the  destructive  pests  and  diseases  which  are 
constantly  threatening  our  plants  and  trees.  The  ravages  of 
the  boll-weevil  in  the  cotton  of  the  South  have  been  materially 
lessened  by  the  recommended  use  of  early-maturing,  short- 
season  varieties.  Iowa  in  1903  was  alarmed  by  the  yearly 
falling  off  in  its  corn  crop  to  figures  far  below  normal.  Pro- 
fessor Holden,  of  the  State  Bureau,  by  means  of  exhaustive 
investigations,  traced  the  evil  to  inferior  seed;  and  careful 
selection  of  seed-corn  soon  restored  the  normal  yield.  The 
eradication  of  the  little-peach  disease  in  Michigan  and  New 
York  and  the  peach-blight  in  California,  the  checking  of  bit- 
ter-rot in  the  apple,  and  the  brown-rot  diseases  of  peaches  and 


INDIVIDUAL  FREEDOM  AND  LAW  405 

other  stone-fruits  are  but  a  few  of  the  countless  achievements 
effected  along  these  lines. 

Not  many  states  but  have  felt  the  beneficent  results  of  the 
work  of  the  department's  representatives.  Dr.  Knapp 
brought  great  prosperity  to  certain  parts  of  Louisiana  and 
Texas  through  a  new  kind  of  rice  farming  which  he  devel- 
oped. Professor  Bolley  has  virtually  eradicated  oat-smut  in 
Wisconsin,  a  pest  which  was  costing  that  state  millions  of 
dollars  a  year.  Professor  Babcock  discovered  a  simple  ap- 
pliance for  gauging  accurately  the  richness  of  milk,  which 
has  been  invaluable  in  putting  the  dairy  upon  a  sound  eco- 
nomic basis.  With  a  true  socialistic  spirit,  Professor  Bab- 
cock  refused  to  have  this  test  patented,  so  it  remained  only 
another  of  the  aids  which  a  communistic  department  has 
given  free  to  the  American  farmer. 

In  the  great  semi-arid  regions  of  the  West,  where  the 
farmer  is  faced  by  the  necessity  of  diverting  water  from  the 
streams  in  order  to  irrigate  his  fields,  water  rights  are  of 
equal  importance  with  land  claims.  During  the  early  days, 
individualistic  competition  for  water  rights  was  the  rule,  but 
this  practice  was  so  fruitful  of  quarrels  and  lawsuits,  and  so 
altogether  unsatisfactory,  that  state  after  state  adopted  col- 
lectivist  principles  in  determining  water  distribution. 

Colorado  was  the  pioneer  state  in  providing  for  the  dis- 
tribution of  water  by  public  officials,  the  state  engineer  being 
the  head  of  the  system.  The  state  is  divided  into  districts, 
each  watered  by  its  own  streams.  State  officials  measure  the 
stream,  gauge  the  supply,  and'  act  as  an  earthly  providence 
to  the  farmers.  The  commissioner  of  a  district  receives  each 
morning  by  telephone  a  statement  of  the  river  under  his  con- 
trol, and  is  then  prepared  to  go  over  the  stream,  regulating 
the  headgates  of  the  ditches  as  may  be  necessary  and  giving 
orders  to  the  ditch  managers.  .  .  .  The  Reclamation 
Act,  passed  in  1902,  provided  for  the  collective  construc- 
tion on  an  unprecedented  scale  of  vast  engineering  works 
for  the  reclamation  of  desert  lands.  As  a  result  of  this 
Act,  the  arid  regions  of  the  West  have  been  transformed 


406  READINGS  IN  CIVIL  GOVERNMENT 

The  Roosevelt  Dam  now  being  built  in  Arizona  will  create 
a  lake  twenty-five  miles  long,  and  will  bring  into  cultivation 
200,000  acres  of  land.  The  Government  has  itself  manufac- 
tured the  cement  and  sawed  the  timber  used  in  its  construc- 
tion. In  Wyoming  the  highest  dam  in  the  world  is  in  course 
of  erection,  and  in  Colorado  a  river  is  being  diverted  by 
means  of  a  six-mile  tunnel  through  a  mountain  of  solid  rock. 
The  mammoth  Laguna  Dam,  which  controls  the  Colorado 
River,  a  huge  earth  dam  in  South  Dakota,  with  a  ditch  140 
miles  long,  the  size  of  a  ship  canal;  a  unique  system  of 
pumps  on  floating  barges  in  North  Dakota,  which  lift  water 
directly  from  the  Missouri  River — these  are  but  a  few  notable 
features  of  the  work  now  in  progress. 

Up  to  the  beginning  of  last  year  the  completed  works  in- 
cluded enough  canals  to  stretch  from  Washington  to  Omaha — 
some  of  them  carrying  whole  rivers — tunnels  aggregating 
eleven  miles  in  length,  ninety-four  large  structures  (such  as 
dams),  nearly  four  hundred  miles  of  wagon  road,  over  seven 
hundred  miles  of  telephones,  many  cement  and  sawmills,  and 
the  topographic  survey  of  an  area  greater  than  Massachu- 
setts and  Rhode  Island.  The  Reclamation  Service  is  operat- 
ing nine  locomotives  and  223  cars,  upon  twenty-three  miles 
of  railroad,  and  five  electric  light  plants  which  it  constructed. 
As  a  result  of  this  work,  ten  thousand  people  have  taken  up 
their  residence  in  the  desert. 

The  construction  now  under  way  will  serve  to  irrigate 
1,598,000  acres,  and  the  projects  planned  will  add  3,270,000 
acres  more.  Of  the  projects  already  approved,  the  approxi- 
mate total  cost  is  $97,000,000.  Yet  so  fertile  is  the  irrigated 
soil  that  two  crops  will  almost  pay  the  total  cost  of  the  irri- 
gation system.  An  accurate  account  is  kept  of  all  expenses 
from  the  time  that  an  irrigation  project  is  undertaken.  When 
the  work  is  completed,  each  acre  irrigated  is  assessed  a  pro 
rata  of  the  total  cost,  and  this  the  settler  must  pay  in  ten 
annual  installments,  without  interest.  This  money  is  re- 
turned to  the  Reclamation  Fund  to  be  used  over  again. 

Before  long,  600,000  farms,  the  homes  for  3,000,000  people, 


INDIVIDUAL  FREEDOM  AND  LAW  407 

will  have  been  reclaimed  from  the  desert.  As  town  popula- 
tions are  more  than  double  the  population  of  their  support- 
ing farm  districts,  it  is  safe  to  say  that  10,000,000  people  will 
presently  be  occupying  these  reclaimed  lands.  The  construc- 
tion by  a  government  of  such  a  vast  water  system,  to  be  sold 
piecemeal  to  thousands  of  farmers,  and  the  continued  owner- 
ship of  the  main  works,  with  guaranteed  water  rights  to  each 
lessee  and  strict  enforcement  of  regulations  upon  the 
co-operative  associations  of  water  users,  constitutes  perhaps 
the  widest  application  of  practical  socialism  on  American 
soil.  .  .  . 

Quite  as  interesting  as  Uncle  Sam's  projects  to  secure  new 
advantages  for  his  people,  are  his  paternalistic  efforts  to  con- 
serve those  natural  resources  which  are  threatened  through 
individualistic  exploitation.  He  owns  and  operates  a  forest 
estate  of  fabulous  value,  "in  the  interest  of  the  whole  people," 
as  an  official  report  phrases  it.  Embracing  about  150,000,000 
acres,  it  is  larger  than  the  combined  areas  of  Great  Britain, 
Ireland,  Greece,  Switzerland,  Belgium,  Servia,  Denmark, 
Costa  Rica  and  Iceland,  or  equal  to  the  area  of  the  whole 
of  New  England,  New  York  and  West  Virginia.  By  the  ap- 
plication of  successful  business  methods  to  the  working  of  this 
estate,  the  gross  receipts  derived  from  it  have  beqn  increased 
from  $25,431  in  1902  to  more  than  $1,000,000  in  1906.  By 
protecting  the  forests  against  fire,  by  permitting  the  cutting 
of  ripe  timber  under  strict  regulation,  and  by  planting  opera- 
tions on  an  extensive  scale,  the  yield  of  the  forest  is  ever  in- 
creased and  the  threatening  lumber  famine  postponed.  The 
communistic  activities  of  the  Forest  Service  are  not  confined 
to  the  management  of  the  Government's  forest  reserves.  It 
co-operates  with  various  states  of  the  Union  in  the  study  of 
their  forest  resources  and  the  elaboration  of  plans  for  devel- 
oping and  protecting  these  resources.  At  present  forestry  is 
being  applied  upon  a  million  acres  of  private  woodland  under 
plans  prepared  during  the  past  four  years  by  the  Forest 
Service.  During  one  year  this  active  bureau  has  examined, 
in  twenty-five  different  states,  timber  tracts  aggregating 


408  READINGS  IN'  CIVIL  GOVERNMENT 

2,000,228  acres.  It  co-operates  with  railroads  in  investigat- 
ing the  present  tie  supply,  the  possibility  of  planting  trees  for 
ties  and  methods  of  prolonging  the  life  of  ties.  Private  lum- 
bermen have  been  shown  by  the  results  of  the  bureau's  studies 
how  to  economize  the  rapidly  diminishing  supply  of  timber, 
and  how  to  increase  the  turpentine  flow  in  pines. 

Nine  states  have  forest  reservations.  New  York  leads  with 
a  forest  area  of  about  a  million  and  a  half  acres.  Governor 
Hughes  recommends  its  extension  and  the  replanting  of 
spruce  and  pine  upon  a  large  scale. 

In  1906,  a  charge  for  grazing  in  the  forests  was  first  es- 
tablished, to  succeed  the  policy  of  free  grazing.  This  was  a 
most  important  step  in  the  preservation  of  our  national  re- 
sources. Its  logical  outcome  is  seen  in  several  states,  includ- 
ing Texas,  Wyoming  and  Washington,  which  have  adopted 
a  system  of  leasing  state  lands  suitable  for  grazing.  From 
this  means  alone  Texas  derived  in  1902  a  revenue  of  $457,656. 
The  federal  Public  Lands  Commission  reported  In  favor  of 
extending  this  leasing  system  to  all  the  300  million  acres  of 
public  grazing  land,  which  constitute  one-fifth  of  the  area 
of  the  United  States.  This  recommendation  is  prompted  by 
the  abuses  of  the  present  pernicious  system  of  free  grazing, 
from  which  naturally  and  inevitably,  overstocking  results  in 
the  consequent  ruin  of  millions  of  acres.  The  once  free  and 
open  range  of  the  West  will  soon  be  held  in  trust  by  a  benefi- 
cent national  government  and  managed  in  the  interests  of  all 
the  people — its  owners — although  the  thriving  cattle-kings  de- 
mand to  be  let  alone.  .  .  . 

The  Consular  Service  is  a  socialistic  organization,  with  of- 
ficers in  every  important  city  of  the  globe,  which  serves  as 
the  eyes  and  ears  of  the  manufacturers  in  the  States.  The 
functions  of  consuls  have  been  very  much  extended  within 
recent  years.  Their  present  duties  consist  in  enlightening  the 
people  in  their  districts  in  regard  to  the  superiority  of  Ameri- 
can products,  and  in  encouraging  and  facilitating  the  importa- 
tion of  such  products  into  their  districts.  Possible  buyers  are 
invited  to  visit  the  consulates  and  examine  the  catalogues  and 


INDIVIDUAL  FREEDOM  AND  LAW  409 

samples  of  American  goods  kept  there  for  inspection.  And 
American  trade  journals  are  usually  kept  on  file  by  the  consul 
for  the  use  of  foreign  buyers.  Further,  each  consul  is  required 
to  furnish  commercial  information  for  official  publication  in 
America.  Daily  and  monthly  bulletins,  issued  free  with 
Uncle  Sam's  usual  communistic  generosity,  keep  manufac- 
turers informed  of  the  opening  for  their  goods  abroad.  Each 
consul,  is,  in  effect,  a  trade  drummer,  maintained  by  the  com- 
munity for  community  advantage.  It  is  his  duty  to  bring  to 
the  attention  of  home  manufacturers  any  opportunity  to  sup- 
ply machinery,  electric  power-plant  equipment,  motor  boats, 
automobiles,  etc.  Only  recently  he  has  been  instructed  to 
furnish  systematized  lists  of  the  merchants  in  his  district  who 
handle  or  might  be  induced  to  handle  American  goods.  This 
information  is  indexed,  and  filed  and,  when  complete,  will 
constitute  a  business  directory  covering  the  world  in  every 
line  of  industry.  Such  a  work  could  only  be  consummated 
through  a  strong  Government  bureau.  For  this  work,  the  na- 
tion co-operatively  provides,  because  the  nation  collectively 
benefits. 

In  respect  to  the  outright  government  ownership  of  public 
utilities,  it  is  the  municipality  rather  than  the  state  or  nation 
which  has  been  most  active.  Municipal  socialism  is  growing 
apace.  From  1800  to  1900,  public  waterworks  in  the  United 
States  developed  in  round  numbers  from  6  per  cent,  to  60  per 
cent,  of  the  whole  number.  Of  the  fifty  largest  cities  in  the 
United  States,  only  nine  are  now  dependent  on  private  com- 
panies for  their  water  supply.  Some  of  the  belated  nine  ap- 
pear to  be  on  the  point  of  changing  to  municipal  ownership, 
and  in  practically  all  of  them  an  agitation  for  such  a  change 
is  in  progress.  Of  the  thirty-eight  cities  with  a  population 
of  more  than  100,000  only  eight  have  private  ownership.  Of 
these,  New  Orleans  will  soon  take  over  its  waterworks,  Omaha 
is  hesitating  only  over  the  question  of  price.  Of  the  thir- 
teen largest  cities,  only  San  Francisco,  which  ranked  ninth 
before  the  earthquake,  has  a  private  supply. 

The  municipal  ownership   of  gas  has  not  been  tried  on 


410  READINGS  IN  CIVIL  GOVERNMENT 

quite  so  considerable  a  scale.  Still,  the  growth  has  recently 
been  rapid.  Whereas  in  1890  there  were  only  nine  municipal 
gas  plants  in  the  United  States,  there  are  now  twenty-five, 
not  to  mention  eighty-four  small  places  selling  acetylene, 
gasoline,  and  natural  gas.  The  largest  municipal  plants  are 
at  Holyoke,  Duluth,  Richmond,  and  Wheeling.  Thirty 
smaller  cities  in  the  United  States  and  Canada  possess  munici- 
pal gas  works. 

Even  more  remarkable  has  been  the  recent  ^development 
of  municipal  electric  light  plants.  Of  the  plants  that  were 
started  prior  to  1899,  only  11.4  per  cent,  were  municipal, 
while  27.8  per  cent,  of  the  stations  opened  from  1896  to  1902 
were  of  this  kind.  Seven  large  cities — Chicago,  Detroit,  Al- 
legheny, Columbus,  Seattle,  Grand  Rapids,  Nashville — have 
municipal  electric  light  plants.  In  the  smaller  cities,  where 
the  profits  of  over-capitalization  have  been  less  tempting  to 
financiers,  municipal  ownership  is  most*  extensive.  Alto- 
gether, no  less  than  1,055  places  in  the  United  States  practice 
this  bit  of  municipal  socialism.  In  all  these  cases,  on  the  word 
of  the  Commission  of  the  National  Civic  Federation,  the  mu- 
nicipal plants  for  providing  water,  gas,  and  electricity,  have 
done  far  better  for  the  taxpayer  and  consumer  than  the 
private  plants  in  anything  like  the  same  situation.  Prices 
have  been  lowered  and  the  plants  paid  for  largely  out  of  the 
earnings. 

ADDITIONAL  READINGS 

1— The  Essential  Functions  of  the  State,  Willoughby,  W.  W., 

The  Nature  of  the  State,  310-16. 

2— Judge  Made  Law,  Taylor,  H.,  Green  Bag,  XVII,  563-5. 
3 — The  Enforcement  of  the  Law,  Folk,  J.  W.,  Green  Bag, 

XVII,  405-10. 


CHAPTER  XVIII 
PROBLEMS  OF  TAXATION 

78.   DEFECTS  IN  THE  GENERAL  PROPERTY  TAX. 

One  of  the  main  sources  of  revenue  to  the  States  has  always  been 
the  general  property  tax.  In  fact,  this  form  of  taxation  has  been 
called  "more  thoroughly  American"  than  any  other.  Nevertheless  it 
has  never  been  entirely  satisfactory,  and  especially  of  late  years  it 
has  been  the  object  of  many  bitter  and  determined  protests.  In  the 
following  selection  Professor  E.  R.  Seligman  points  out  its  most 
salient  defects:1  [1890]. 

The  defects  of  the  general  property  tax  may  be  discussed 
under  five  heads. 

1.  Lack  of  uniformity,  or  inequality  of  assessment.  The 
property  tax  with  us  is  an  apportioned,  not  a  percentage  tax. 
According  to  the  latter  method  the  tax  would  be  levied  on 
the  individual  taxpayer  by  means  of  a  fixed  rate  or  per- 
centage of  all  property.  According  to  the  actual  method  the 
total  amount  to  be  raised  by  the  state  is  first  ascertained,  and 
is  then  apportioned  to  the  various  subdivisions  according  to 
the  appraised  valuation  in  each.  The  final  rate  of  taxation 
is  obtained  by  adding  the  local  tax  to  the  state  tax.  The 
rate  of  taxation  ought  therefore  to  vary  only  with  the  local 
needs,  and  would  indeed  so  vary  if  property  were  everywhere 
assessed  uniformly.  As  an  actual  fact,  however,  this  is  far 
from  being  the  case.  In  most  of  the  commonwealths  J;he  tax 
laws  provide  for  the  assessment  of  property  at  its  "fair  cash 
value."  And  in  all  the  states  it  is  expected  that  the  valua- 
tion shall  everywhere  be  made  at  a  uniform  rate.  Yet  it  is  a 

i  Selections  78  and  80  are  reprinted  from  Seligman,  Essays  in  Tax- 
ation, by  special  permission  of  MacMillan  and  Company. 

411 


412  READINGS  IN  CIVIL  GOVERNMENT 

notorious  fact  that  in  scarcely  any  two  contiguous  counties  is 
the  property — even  the  real  estate — appraised  in  the  same 
manner  or  at  the  same  rate.  In  regard  to  the  manner,  it 
frequently  happens  that  corporation  property,  e.  g.y  the  road- 
bed of  a  railway,  is  assessed  in  one  county  at  an  immense 
sum  per  mile  and  is  treated  in  the  adjacent  county  like  a 
piece  of  grazing  land.  In  regard  to  the  rate,  the  assessors 
follow  the  practice  sanctioned  by  local  usage  or  decide  by 
mere  caprice.  The  official  reports  abound  with  complaints  or 
open  confessions  that  property  is  assessed  all  the  way  from 
par  to  one  twenty-fifth  of  the  actual  value.  In  one  county 
the  property  is  listed  at  its  full  worth ;  in  the  next  county  the 
assessment  does  not  exceed  a  tithe  of  its  value.  That  this  is 
a  glaring  infraction  of  the  fundamental  rule  of  equality  in 
taxation  is  apparent.  As  between  counties  it  leads  to  under 
valuations  which  give  an  entirely  fallacious  view  of  the  public 
resources.  As  between  individuals  it  results  in  gross  in- 
justice. A  tax  rate  of  a  given  amount  on  one  may  be  double, 
quintuple  or  decuple  the  nominally  equivalent  tax  on  another. 
The  first  constitutional  injunction — that  of  uniformity  of  taxa- 
tion— is  flagrantly  violated.  Assessors  are  compelled  openly  to 
disregard  their  oath,  or  to  incur  certain  defeat  at  the  next 
election.  There  is  no  pretence  of  complying  with  the  law. 

An  escape  from  these  evils  has  been  sought  in  the  creation 
of  boards  of  equalization.  A  large  number  of  common- 
wealths have  attempted  to  correct  the  undervaluation  of  the 
county  officials  by  giving  a  state  board  power  to  raise  or  lower 
the  valuations  (or  in  some  cases  the  rate)  in  the  hope  of  se- 
curing a  substantial  uniformity.  But  the  effort  has  been  very 
imperfectly  successful.  The  composition  of  the  boards  is 
such  as  to  render  any  comprehensive  scrutiny  of  the  county 
returns  almost  impossible.  Even  were  the  boards  to  be  con- 
stituted in  an  ideal  manner,  the  local  jealousies  and  bicker- 
ings would  still  continue  to  prevent  any  just  distribution  of 
the  burdens.  The  boards  themselves  confess  that  such  dis- 
tribution is  impossible  under  our  present  system.  Boards  of 
equalization  are  thus  at  best  a  mere  makeshift,  a  clumsy  and 


PROBLEMS  OF  TAXATION  413 

cumbrous  attempt  to  accomplish  the  impossible.  In  the  dras- 
tic phrase  of  Mr.  Townsend :  '  *  A  people  cannot  prosper  whose 
officers  either  work  or  tell  lies.  There  is  not  an  assessment 
roll  now  made  out  in  this  state  that  does  not  both  tell  and 
work  lies."  As  long  as  this  is  true,  boards  of  equalization 
are  of  little  avail. 

2.  Lack  of  universality,  or  failure  to  reach  personal  prop- 
erty. This  is  a  defect  which,  although  the  most  flagrant,  per- 
haps requires  the  least  commentary ;  for  it  is  so  patent  that  it 
has  become  a  mere  byword  throughout  the  land.  Personal 
property  nowhere  bears  its  just  proportion  of  the  burdens. 
And  it  is  precisely  in  those  localities  where  its  extent  and 
importance  are  the  greatest  that  its  assessment  is  the  least. 
The  taxation  of  personal  property  is  in  inverse  ratio  to  its 
quantity.  The  more  it  increases,  the  less  it  pays.  The  rea- 
son is  plain.  So  far  as  it  is  intangible,  personal  property 
escapes  the  scrutiny  of  the  most  vigilant  assessor;  so  far  as  it 
is  tangible,  it  is  exempted  in  its  chief  form,  as  stock  in  trade, 
by  every  intelligent  official.  In  the  mad  race  for  wealth  it 
would  be  suicidal  for  the  local  assessors  in  large  cities  to  as- 
sess the  merchant's  capital,  with  the  sole  result  of  driving  it 
away  to  localities  more  favored  by  their  financial  officers.  It 
is  scarcely  necessary  to  give  figures  to  substantiate  these  state- 
ments. The  tenth  census  of  the  United  States  asserts  that 
from  1860  to  1880  the  assessed  valuation  of  real  estate  in- 
creased from  $6,973,006  to  $13,036,767,  while  that  of  per- 
sonal property  decreased  from  $5,111,554  to  $3,866,227.  In 
California  personal  property  was  assessed  in  1872  at  220  mil- 
lions of  dollars,  in  1880  at  174  millions,  and  in  1887  at  164 
millions — a  net  decrease  in  fifteen  years  of  56  millions.  Real 
estate  increased  during  the  same  period  from  417  millions  to 
791  millions.  Personal  property  paid  17.31  per  cent.,  real 
estate  82.69  per  cent,  of  the  taxes.  In  Illinois  the  figures  for 
1888  are  20.18  per  cent,  and  79.82  per  cent,  respectively.  In 
Cook  county  (Chicago),  out  of  a  total  valuation  of  210  mil- 
lions, personal  property  paid  only  14  per  cent.  In  New  York 
the  figures  are  as  follows : 


414  READINGS  IN  CIVIL  GOVERNMENT 

Real  Estate.  Personal  Property. 

1843   $    476,999  $118,602 

1859   1,097,504  307,349 

1871    1,599,930  452,607 

1878   2,373,418  364,960 

1888   3,122,588  346,611 

The  proportion  paid  by  personal  property  has  decreased 
steadily  every  year,  until  according  to  the  last  figures  it  pays 
but  9.99  per  cent,  of  the  state  taxation,  over  against  90.01  per 
cent,  falling  on  real  estate.  In  New  Jersey,  in  1887,  in  one 
township  the  real  estate  was  assessed  at  $272,232,  the  personal 
property  at  $591.  In  another  the  figures  were  $2,274,900 
and  $47,150  respectively!  In  New  York  the  personalty  was 
returned  in  one  town  at  $5,000,  in  the  adjoining  but  no  more 
prosperous  town  at  $700,000. 

These  striking  figures  become  ridiculous  when  it  is  remem- 
bered that  in  our  modern  civilization  the  value  of  personal 
property  far  exceeds  that  of  real  estate  as  understood  by  the 
taxing  power.  It  is  true  that  the  legal  distinction  between 
real  and  personal  property  fluctuates  in  the  various  com- 
monwealths; but  in  the  eyes  of  the  assessors  real  estate  gen- 
erally includes  only  land  and  the  fixtures  thereto,  all  the 
other  forms  of  wealth  being  regarded  as  personal  property. 
In  California,  indeed,  the  constitution  of  1879  provides  that 
mortgages  of  real  estate  shall  be  regarded  and  caxed  as  realty. 
The  law  of  Massachusetts  and  Oregon  is  similar.  But  even 
if  mortgages  were  counted  as  real  estate,  and  even  if  (as  is 
nowhere  done)  other  certificates  of  ownership  in  realty  were 
also  counted  as  real  estate,  it  would  still  remain  true  that 
personal  property  constitutes  the  greater  part  of  the  na- 
tional wealth.  For  personal  property  does  not  denote  merely 
movable  objects.  It  includes  money,  public  obligations,  and 
the  vast  mass  of  intangible  property  represented  by  securities 
of  corporations,  of  which  only  a  small  portion  are  certificates 
of  ownership  in  reality.  Above  all,  personal  property  in- 
cludes the  entire  and  ever-increasing  annual  products  of 
agriculture  and  industry — the  gigantic  mass  of  modern 


PROBLEMS  OF  TAXATION  415 

wealth  devoted  mainly  to  consumption,  but  existing  as  the 
stock  in  trade  of  individuals.  Even  in  our  most  western 
commonwealths,  where  the  communities  are  still  mainly 
agricultural,  it  is  an  acknowledged  fact  that  the  personalty 
exceeds  the  realty.  The  auditor  of  Washington  tells  us  that 
if  a  true  valuation  could  be  reached  it  is  "clear  and  incon- 
testable that  the  wealth  of  the  territory  in  personal  property, 
for  the  purposes  of  taxation,  would  largely  predominate  over 
that  of  real  estate. ' '  And  if  this  is  true  of  the  far  West,  how 
much  greater  must  be  the  relative  proportion  of  personalty  in 
the  busy  marts  of  the  East.  Yet  the  more  differentiated  the 
industry  and  the  more  predominant  the  personalty,  the  less 
does  the  latter  contribute  to  the  public  charges;  until  in  the 
foremost  state  of  the  Union  realty  pays  more  than  nine-tenths 
and  personalty  less  than  one-tenth. 

The  taxation  of  personal  property,  I  repeat,  is  in  inverse 
ratio  to  its  quantity.  The  more  it  increases,  the  less  it  pays. 
The  general  property  tax  thus  sins  against  the  principle  of 
universality  of  taxation  even  more  than  against  the  princi- 
ple of  uniformity.  In  the  middle  ages  whole  classes  were 
exempt  by  express  provision  of  the  law;  in  our  time  and 
country  whole  classes  are  exempt  by  the  inevitable  working 
of  the  law.  It  is  the  law  which  is  equally  at  fault  in  both 
cases. 

3.  Incentive  to  dishonesty.  One  of  the  worst  features 
of  the  general  property  tax  is  that  any  attempt  to  enforce 
the  taxation  of  personalty  by  more  rigid  methods  results  in 
evasions  and  deceptions.  The  property  tax  necessarily  leads 
to  dishonesty,  and  this  for  two  reasons.  In  the  first  place, 
under  our  system  whole  classes  of  personalty  are  exempt 
from  state  taxation.  The  most  familiar  examples  are  im- 
ported merchandise  in  the  original  package;  United  States 
bonds,  notes,  checks  and  certificates;  property  in  transitu; 
goods  produced  in  another  state  sent  on  commission;  deposits 
in  savings  banks,  etc.  The  temptation  for  the  taxpayer  to 
convert  his  property  temporarily  into  these  classes  is  gen- 
erally irresistible.  Not  only  does  the  law  hold  out  to  indi- 


416  READINGS  IN  CIVIL  GOVERNMENT 

viduals  inducements  to  practice  fraud,  but  it  sustains  them 
in  its  commission.  Secondly,  wherever  any  pretense  is  made 
of  enforcing  the  tax  on  personalty,  and  especially  where  the 
taxpayers  are  required  to  fill  out  under  oath  detailed  blanks 
covering  every  item  of  their  property;  the  inducements  to 
perjury  are  increased  so  greatly  as  to  make  its  practice 
universal.  The  honest  taxpayer  would  willingly  bear  his 
fair  share  of  the  burden;  but  even  he  cannot  concede  his 
obligation  to  pay  other  men's  taxes.  The  only  result  of 
more  rigid  execution  of  the  law  is  a  more  systematic  and 
universal  system  of  deception.  Official  documents  tell  us 
that  "  instead  of  being  a  tax  upon  personal  property,  it  has 
in  effect  become  a  tax  upon  ignorance  and  honesty.  That 
is  to  say,  its  imposition  is  restricted  to  those  who  are  not 
informed  of  the  means  of  evasion,  or,  knowing  the  means, 
are  restricted  by  a  nice  sense  of  honor  from .  resorting  to 
them."  The  tax  commission  of  New  Hampshire  declares 
that ' '  the  mere  failure  to  enforce  the  tax  is  of  no  importance, 
in  itself  considered,  in  comparison  with  the  mischief  wrought 
in  the  corrupting  and  demoralizing  influences  of  such  legis- 
lation. The  Illinois  commission  asserts  that  the  system  is 
"  debauching  to  the  conscience  and  subversive  of  the  public 
morals — a  school  for  perjury,  promoted  by  law."  The  Con- 
necticut commission  maintains  that  the  resulting  "demoral- 
ization of  the  public  conscience  is  an  evil  ot  the  greatest 
magnitude."  The  West  Virginia  commission  tells  us  that 
"the  payment  of  the  tax  on  personalty  is  almost  as  voluntary 
and  is  considered  pretty  much  in  the  same  light  as  donations 
to  the  neighborhood  church  or  Sunday-school."  And  almost 
every  annual  .report  of  the  state  comptrollers  and  assessors 
complains  bitterly  that  the  assessment  of  personalty  is 
nothing  but  an  incentive  to  perjury. 

4.  Regressirity.  Taxes  are  progressive  when  their  increase 
is  more  than  proportional  to  the  increase  of  the  property  or 
income  taxed,  i.  e.,  when  the  rate  itself  increases  with  the 
increase  of  the  property.  Taxes  are  regressive  when  the  rate 
increases  as  the  property  or  income  decreases.  The  general 


PROBLEMS  OF  TAXATION  417 

property  tax  m  its  practical  effects  is  regressive.  For  the 
tax  on  personalty  is  levied  practically  only  on  those  who 
already  stand  on  the  assessor's  book  as  liable  to  the  tax  on 
realty.  Those  who  own  no  real  estate  are  not  taxed  at  all; 
those  who  possess  realty  bear  the  taxes  for  both.  The  weight 
of  taxation  thus  rests  on  the  farmer.  In  the  rural  districts 
the  assessors  add  the  personalty,  which  is  generally  visible 
and  tangible,  to  the  realty  and  impose  the  tax  on  both.  We 
hear  a  great  deal  about  the  decline  of  farming  land.  But  one 
of  its  main  causes  has  been  singularly  overlooked.  It  is  the 
overburdening  of  the  agriculturist  by  the  general  property 
tax.  What  is  virtually  a  real  property  tax  in  the  remainder 
of  the  state  becomes  a  general  property  tax  in  the  rural 
regions.  The  farmer  bears  not  only  his  share,  but  also  that 
of  the  other  classes  of  society.  Thus  official  documents  tell 
us  that  "the  class  of  property  that  escapes  taxation  most, 
is  the  class  of  property  that  pays  the  largest  dividends." 
And  in  general  it  may  be  said,  with  our  state  auditors,  that 
"the  property  of  the  small  owner,  as  a  rule,  is  valued  by  a 
far  higher  standard  than  that  of  his  wealthy  neighbor. ' '  Or, 
as  it  is  put  by  others: 

In  every  portion  of  the  State  we  find  the  most  unproductive  prop- 
erty, and  that  of  the  lowest  real  value,  assessed  at  the  highest  ratio. 
The  rule  holds  good  that  those  who  have  to  battle  hardest  with  life 
for  subsistence,  are  compelled  to  pay  the  most  onerous  taxes  on  the 
real  value  of  their  property. 

It  is  no  wonder  that  in  their  desperation  the  small  farmers 
should  cry  out  for  the  equal  enforcement  of  the  laws  taxing 
personalty ;  it  is  no  wonder  that  they  should  attempt  to  stem 
the  current  in  ignorance  of  the  impossibility  of  the  task: 
They  have  forgotten  Walpole's  saying,  that  it  is  safer  to  tax 
real  than  personal  estate,  because  "landed  gentlemen  are  like 
the  flocks  upon  their  plains,  who  suffer  themselves  to  be  shorn 
without  resistance;  whereas  the  trading  part  of  the  nation 
resemble  the  boar,  who  will  not  suffer  a  bristle  to  be  pluckt 
from  his  back  without  making  the  whole  parish  to  echo  with 
his  complaints. " 
27 


418  READINGS  IN  CIVIL  GOVERNMENT 

5.  Double  taxation.  Double  taxation  is  of  two  kinds: 
that  which  is  prima  facie  double — double  taxation  in  itself — 
and  duplicate  taxation  arising  from  interstate  complications. 
The  second  form  will  be  omitted  here,  as  it  is  not  peculiar 
to  the  property  tax  but  may  arise  in  connection  with  almost 
any  direct  tax.  The  existing  chaos  on  this  point  will  be 
discussed  in  another  article.  I  confine  myself  here  to  the 
first  form. 

Perhaps  the  greatest  weakness  of  our  general  property  tax, 
and  the  one  which  has  given  rise  to  the  most  interminable 
discussion,  is  connected  with  the  subject  of  debt  exemption. 
On  the  one  hand  it  is  maintained  that  an  offset  should  be 
made  for  all  indebtedness,  whether  mortgage  debt  on  real 
property  or  general  liabilities  on  personalty.  Individuals 
should  be  taxed  on  what  they  own,  not  on  what  they  owe.  To 
tax  both  borrower  and  lender  is  double  taxation.  This  is  the 
view  of  the  Connecticut  commission,  and  the  practice  of  a 
few  states  accords  with  it.  On  the  other  hand  the  majority 
of  American  investigators  assert  that  deduction  for  indebt- 
edness results  practically  in  such  injustice  and  deception  as 
to  be  utterly  unendurable.  They  therefore  demand  that 
there  should  be  no  offset  of  debts  against  property.  This  is 
the  view  of  the  Massachusetts  and  New  Jersey  commissions, 
and  the  practice  in  many  states. 

Both  these  views  are  correct.  To  tax  both  lender  and  bor- 
rower for  the  same  property  is  plainly  double  taxation,  and 
therefore  unjust.  The  fallacy  of  the  contrary  opinion  con- 
sists in  looking  at  the  property  rather  than  at  the  owner. 
What  the  state  desires  to  reach  is  primarily  the  individual. 
It  taxes  his  property  simply  because  it  considers  this  a  test 
of  his  ability  to  pay.  But  his  ability  is  manifestly  reduced 
pro  tanto  by  his  debts.  His  true  taxable  property  there- 
fore consists  in  his  surplus  above  indebtedness.  Otherwise 
one  would  be  taxed  for  what  he  has,  and  another  for  what 
he  has  not.  This  is  the  view  accepted  by  all  European 
authorities.  The  only  American  scientist  who  holds  to  the 
contrary  opinion,  Amasa  Walker,  does  so  in  a  half-hearted 


PROBLEMS  OF  TAXATION  419 

way;  for  he  bases  his  view  on  utterly  arbitrary  data,  con- 
fesses that  much  hardship  will  ensue,  and  finally  concludes 
that  the  income-tax  principle  is  the  only  just  one.  To  tax 
both  property  and  credits,  both  lender  and  borrower,  is 
plainly  incorrect  in  principle,  and  inequitable  in  practice. 

On  the  other  hand  it  is  equally  true  that  deduction  for 
debts  is  thoroughly  pernicious  in  its  operation.  It  is  the 
universal  testimony  that  no  portion  of  the  tax  laws  offers 
more  temptations  to  fraud  and  perjury  than  this  system  of 
offsets.  The  creation  of  fictitious  debts  is  a  paying  invest- 
ment. In  the  states  where  such  deductions  are  permitted, 
attempts  to  obtain  immunity  from  taxation  in  this  way  are 
universal  and  generally  successful.  And  they  are  most  suc- 
cessful in  the  case  of  property  which  already  bears  less 
than  its  share  of  the  burdens.  The  great  majority  of 
officials  cry  out  against  debt-exemption  as  an  utter  abomina- 
tion. .  .  . 

If  we  sum  up  all  these  inherent  defects,  it  will  be  no 
exaggeration  to  say  that  the  general  property  tax  in  the 
United  States  is  a  dismal  failure.  No  language  can  be 
stronger  than  that  found  in  the  reports  of  the  officials  charged 
with  the  duty  of  assessing  and  collecting  the  tax.  "Whole 
pages  might  be  filled  with  such  testimony  from  the  various 
states. 

79.   THE  TAXATION  OF   SECURITIES. 

Among  the  problems  of  taxation  none  press  more  insistently  for 
settlement  than  that  having  to  do  with  the  taxation  of  stocks,  bonds 
and  other  intangible  forms  of  wealth.  The  inequalities  and  unfair- 
ness which  result  from  the  attempt  to  apply  the  general  property 
tax  to  this  form  of  wealth  are  clearly  set  forth  by  Professor  F.  W. 
Taussig  in  the  following  selection:  [1899]. 

The  common  mode  of  taxing  securities  in  our  states  and 
cities  is  familiar  enough.  They  are  taxable  like  other 
property.  The  taxpayer  is  confronted  with  a  formidable 
document,  on  which  he  is  expected  to  set  forth  all  his  pos- 
sessions, from  his  house  to  his  watch,  from  his  stocks  and 
bonds  to  the  pennies  in  his  pocket.  On  the  basis  of  such  a 


420  READINGS  IN  CIVIL  GOVERNMENT 

statement,  whose  accuracy  must  usually  be  averred  under 
oath,  he  is  supposed  to  be  taxed  on  all  his  property  at  the 
same  rate.  The  system  seems  to  be  simplicity  itself;  and 
prima  facie  it  commends  itself  to  the  average  man's  sense  of 
what  is  fit  and  just.  What  more  right  than  that  all  should 
pay  in  proportion  to  their  means,  the  rich  more,  the  poor 
less?  Securities  are  but  one  form  of  each  individual's  means, 
and  take  their  place  with  the  rest  among  taxable  possessions. 
The  actual  operation  of  this  system  is  no  less  familiar.  In 
practice,  the  statement  contemplated  by  law  is  rarely  made. 
The  levy  of  taxes  takes  place  by  some  sort  of  estimate  on 
the  part  of  the  tax  assessors;  and  the  very  existence  of  tax- 
able property,  outside  of  the  real  estate  which  all  can  see,  is 
often  a  matter  of  guesswork.  So  far  from  being  reached  by 
taxation  in  the  manner  expected,  securities  are  commonly 
not  reached  at  all.  The  same  story,  with  variations  in  detail 
but  with  the  gist  identical,  comes  from  all  quarters.  The 
country  grows  apace,  and  wealth  and  numbers  accumulate 
at  a  rate  unexampled  in  the  world's  history.  Corporate 
enterprises  extend  over  a  larger  field,  and  the  securities  issued 
by  them  swell  in  volume,  until  the  enterprises  concerned 
sometimes  burst  with  the  tension.  But  the  tax  returns,  if 
any  one  believed  them,  would  indicate  that  personal  property 
is  barely  holding  its  own — nay,  is  commonly  decreasing — 
and  that  a  veritable  blight  has  fallen  on  this  form  of  wealth. 
So  completely  are  securities  ignored  in  the  taxing  operations 
of  many  communities  that  they  virtually  drop  out  of  sight; 
and  the  affairs  of  citizens  and  officials  alike  are  arranged  on 
the  basis  of  virtually  exempting  them.  Elsewhere  spasmodic 
efforts  are  made  at  enforcement,  vigor,  conformity  to  the 
letter  of  the  law,  with  relapse,  before  long,  to  the  old  condi- 
tions, and  even  at  the  best,  with  no  results  satisfactory  either 
to  the  tax-gatherer  or  to  the  public-spirited  observer.  It 
may  be  fairly  urged  that  the  American  public,  when  it  accepts 
the  facts  of  the  situation  and  treats  securities  as  exempt  in 
fact  though  taxable  in  law,  does  better  than  under  spasmodic 
and  unsuccessful  attempts  at  enforcement.  But  either  result 


PROBLEMS  OF  TAXATION  421 

means  that  contempt  for  law  is  bred,  and  that  taxation 
accords  with  no  defensible  principle  of  justice. 

I  will  now  lay  down  a  proposition  as  to  what  I  conceive 
to  be  the  first  step  towards  a  reform  in  this  demoralizing 
situation.  That  first  step,  in  my  judgment,  is  the  exemption 
of  securities  from  the  ordinary  form  of  direct  taxation.  It 
would,  doubtless,  be  more  politic,  and  might  be  more  accurate, 
to  phrase  the  proposal  in  the  form  of  a  demand,  not  for 
exemption  from  ordinary  taxation,  but  for  substitution  of 
other  taxes  for  those  now  levied.  But  we  may  as  well  take 
the  bull  by  the  horns  and  state  frankly  that  the  change 
must  present  itself  first  as  an  exemption,  to  be  followed  by 
further  changes  that  will  indeed  redress  the  balance,  but  will 
still  leave  a  situation  in  which  other  forms  of  property  are 
heavily  taxed,  while  securities  as  such  are  prima  facie 
exempt. 

Such  a  demand  must  expect  to  meet  a  great  hue  and  cry  in 
some  quarters  and  a  natural  repugnance  in  others.  It  will 
be  proclaimed  by  demagogues,  as  well  as  by  honest  friends 
of  social  reform,  to  be  a  surrender  to  the  tax-dodgers,  a 
yielding  to  the  plutocracy,  a  shifting  of  the  burden  of  taxa- 
tion from  those  who  can  bear  it  easily  to  those  who  already 
have  too  much  to  carry.  Even  sober  citizens,  impressed 
with  the  growth  of  corporate  wealth  and  the  paper  evidences 
of  its  ownership,  may  naturally  hesitate  to  approve  legis- 
lation that  seems  to  put  aside  at  least  one  mode  of  securing 
for  the  public  a  due  share  of  the  gains  from  great  corporate 
enterprises. 

Let  us  now  give  our  critical  attention  to  the  fundamental 
proposal  which  I  have  laid  down,  and  to  an  explanation  of 
the  grounds  on  which  it  rests.  We  may  begin  by  recalling 
some  things  fundamental  in  the  working  of  taxation — things 
obvious  and  familiar  enough,  but,  like  many  that  are  obvious 
and  familiar,  often  forgotten  when  their  corollaries  are  under 
discussion. 

The  mark  of  taxation  proper  is  the  absence  of  strict  quid 
pro  quo:  it  is  the  requirement  of  payment  irrespective  of 


422  HEADINGS  IN  CIVIL  GOVERNMENT 

anything  got  in  return.  In  the  books  you  will  find  much 
discussion,  not  always  of  an  enlightening  sort,  as  to  whether 
taxes  should  be  regarded  as  a  payment  for  services  rendered 
by  the  state;  while,  in  conversation  with  the  average  intelli- 
gent citizen,  you  will  often  find  it  laid  down  as  a  matter 
of  course  that  taxes  are  such  a  payment,  rendered  in  return 
for  the  "protection"  afforded  by  the  state  and  not  justifiable 
unless  such  protection  be  given.  For  the  discussion  of  most 
phases  of  taxation,  it  suffices  to  point  out  there  can  be  no 
measure  of  the  services  or  protection  rendered,  and  that  we 
must  perforce,  adjust  the  payments  on  some  other  basis.  If 
we  could  manage  our  taxes  as  we  manage  the  allied,  yet 
radically  different,  charges  for  postal  service  or  water  supply, 
a  multitude  of  problems  would  be  much  simplified.  If  you 
refuse  to  pay  your  water  rate,  the  city  shuts  off  the  water 
and  (if  I  may  use  the  phrase)  washes  its  hands  of  you.  If 
you  do  not  put  on  your  postage  stamp,  your  letter  does  not 
go.  But  if  you  refuse  to  pay  your  taxes,  the  f  remen  still 
rush  to  save  your  house,  the  police  safeguard  your  property, 
the  sewers  empty  your  drains,  the  schools  instruct  your 
children.  These  services  continue  to  be  rendered  to  you, 
whether  you  pay  or  no,  not  for  your  special  benefit,  but 
because  for  one  reason  or  another  they  are  deemed  to  pro- 
mote the  welfare  of  all.  .  .  . 

Evidently,  the  disposition  to  evade  increases  in  ratio 
with  the  gain  to  be  made.  You  have  all  heard  the  story  of 
the  lamented  Col.  Jim  Fisk,  to  whom  it  was  remarked  that 
his  lately  deceased  father  had  been  ready  to  tell  a  lie  for 
nine-pence.  "No,"  said  the  ingenuous  son;  "but"  (reflec- 
tively) "the  old  man  would  tell  eight  for  a  dollar."  I  will 
illustrate  the  obvious  application  to  our  subject  by  recalling 
experiences  in  other  parts  of  the  field  of  taxation.  Income 
taxes,  resting  on  a  declaration  by  the  taxpayer,  have  very 
different  aspects,  according  to  the  rate  at  which  they  are 
imposed.  A  tax  of  two  per  cent,  on  incomes  might  be  col- 
lected with  reasonable  approach  to  success ;  but  one  of  twenty 
per  cent,  would  unfailingly  yield  a  plentiful  crop  of  lies.  The 


PEOBLEMS  OF  TAXATION  423 

income  tax  lately  adopted  in  Prussia — in  many  respects  the 
most  perfectly  elaborated  tax  of  the  kind  in  any  great  state 
— provides  in  general  for  a  rate  of  something  like  three  per 
cent.,  which  may  fairly  be  said  to  be  not  so  high  as  to 
preclude  successful  administration.  It  is  true  that,  with  the 
local  supplements  that  may  be  attached  to  it  and  with  some 
other  closely  connected  taxes,  the  effective  rate  in  Prussia 
may  rise  much  higher — to  six  or  eight  per  cent.,  or  even 
more;  and  it  is  still  an  open  question  whether,  in  its  total 
effect,  this  measure  has  not  overshot  the  line  of  safety.  In 
any  case,  in  Prussia,  as  in  other  countries  whose  tax  systems 
are  cautiously  and  deliberately  planned,  an  endeavor  at 
least  is  made  to  avoid  undue  strain  on  the  taxpayer.  For 
this  purpose  an  obvious  device  is  to  make  the  strain  not  too 
strong  at  any  one  point;  to  have  divers  moderate  taxes  at 
different  points,  rather  than  one  heavy  tax  at  a  single  point ; 
and  to  avoid,  above  all,  weighty  taxes  whose  amount  rests, 
in  the  first  instance,  on  a  declaration  by  the  taxpayer  himself. 
Let  us  now  turn  from  these  general  considerations  to  the 
situation  in  our  American  states  and  cities.  I  will  refer, 
first,  to  the  state  of  Massachusetts,  because  there  the  rates, 
as  American  rates  go,  are  not  excessive;  the  administration 
is  generally  honest ;  the  appearances  at  least  of  conformity  to 
the  law  are  maintained.  The  average  rate  of  taxation  in 
the  state  is,  roughly,  $15  for  each  $1,000  of  property,  or  one 
and  a  half  per  cent,  on  the  capital  value.  In  the  city  of 
Boston  the  rate  is  usually  $12  or  $13  for  each  $1,000;  in 
other  cities  it  is  as  high  as  the  average  for  the  state,  if  not 
higher.  The  rate  of  return  on  sound  securities  is  not  over 
five  per  cent.,  and  on  well-known  securities  of  unquestioned 
solidity  it  is  less  than  four  per  cent.  The  state  itself  sells, 
at  a  good  premium,  bonds  yielding  but  three  and  a  half  per 
cent.  It  is  an  easy  calculation  that  the  rate  of  tax  on  such 
securities,  measured  with  reference  to  income,  is  not  less  than 
twenty-five  per  cent.,  is  commonly  as  high  as  thirty  per  cent., 
and  rises  not  infrequently  to  fifty  per  cent.  No  sane  person, 
unless  bent  on  an  overturn  of  the  entire  social  order,  would 


424  READINGS  IN  CIVIL  GOVERNMENT 

seriously  propose  a  formal  income  tax  at  such  rates.  Yet, 
by  force  of  tradition,  or  from  whatever  cause,  the  law  in 
Massachusetts  calls  on  the  taxpayer  to  step  forth,  enumerate 
in  detail  his  possessions  of  this  sort  and  be  mulcted  on  a 
quarter  or  a  third  of  his  income  for  them. 

It  is  hardly  necessary  to  say  that,  in  fact,  nothing  of  the 
sort  is  accomplished.  While  the  more  flagrant  abuses  which 
appear  elsewhere  are  not  met  in  the  staid  old  commonwealth, 
this  part  of  the  tax  system  is  no  more  satisfactory  there  than 
elsewhere.  There  is  evasion;  there  is  utilization  of  divers 
available  loopholes  of  escapes;  there  is  more  or  less  conscious 
laxness  by  assessors;  there  is  downright  perjury  when  the 
screws  are  put  on;  and  there  is  notorious  failure  to  reach  a 
tithe  of  the  movable  property  which  is  in  law  subject  to 
taxation.  The  late  Judge  John  Lowell,  who  was  chairman 
of  a  commission  of  inquiry  on  which  I  had  the  honor  of  sitting 
with  him,  summed  up  his  impressions,  at  the  close  of  some 
lively  hearings,  by  remarking  that ' '  taxation  in  Massachusetts 
was  a  system  of  confiscation  tempered  by  favoritism/' 

In  other  states  the  situation  is  complicated  by  the  effects 
of  other  anomalies  in  the  operation  of  the  tax  laws,  and,  as 
I  have  just  intimated,  is  sometimes  fairly  farcical.  Intelli- 
gent foreigners,  desirous  of  informing  themselves  as  to  the 
working  of  the  fiscal  aspects  of  our  democracy,  are  amazed  at 
the  rates  of  tax  which  are  mentioned  to  them.  "An  annual 
tax  of  $20  or  $30,  or  even  $40,  for  each  $1,000  of  capital? 
Surely  not;  you  must  mean  $20  or  $40  for  each  $1,000  of 
income;  for  such  figures  per  $1,000  of  property  or  capital 
mean  fifty  per  cent,  or  more  on  the  presumable  income." 
The  American  finds  himself  suspected  of  the  national  trick  of 
hoaxing  when  he  repeats  that  such  things  really  are.  He 
explains,  to  be  sure,  that  these  seemingly  unendurable  taxes 
are  so  only  in  appearance.  On  real  property,  to  which 
mainly  they  apply,  the  tax  valuation  is  commonly  but  one- 
half  or  two-thirds  of  its  salable  value ;  and  a  tax  rate  of  $20 
on  the  assessed  value  usually  is,  in  substance,  one  of  perhaps 
$10,  $12  or  $14  on  the  actual  value — rates  which  still  seem 


PEOBLEMS  OF  TAXATION  425 

wofully  heavy  to  the  European,  but  which  at  least  are  not 
incredible.  As  for  the  causes  of  these  fictitious  valuations  and 
rates,  our  foreigner  would  need  a  long  string  of  explanations. 
The  relations  of  our  states  to  the  cities  and  other  local  bodies ; 
the  practice  of  apportioning  state  taxes  among  these  bodies 
according  to  the  tax  valuations  of  their  property ;  the  tempta- 
tion for  each  city  or  town  to  escape  with  a  small  share  of 
the  state  tax  by  making  its  valuations  low;  then,  too,  the 
natural  tendency  of  valuations  to  sag,  by  imperceptible 
stages,  as  the  elected  assessors  refrain  from  pressing  with 
judicial  inflexibility  first  on  this  citizen  and  then  on  that — 
these  factors  would  need  to  be  descanted  on,  and  another 
in  the  story  of  our  fiscal  difficulties  would  need  to  be  opened. 
We  cannot  stop  to  digress  so  far.  Suffice  it  to  bear  in  mind 
that  the  rates  at  which  the  authorities  demand  taxes  from 
many  American  taxpayers,  perhaps  from  the  majority,  are, 
on  their  face,  such  as  I  have  mentioned — $20,  $30,  or  even 
more,  on  each  $1,000  of  his  possessions. 

Observe,  now,  how  such  a  system  bears,  almost  inevitably, 
on  securities.  As  to  land  and  buildings,  they  are  brought 
within  limits  of  comparative  moderation  by  a  more  or  less 
systematic  process  of  undervaluation.  The  value  of  a  parcel 
of  realty,  always  a  matter  of  some  uncertainty  and  never 
subject  to  daily  record,  affords  every  opportunity  for  flexible 
treatment.  So,  too,  the  value  of  a  merchant's  stock-in-trade, 
of  a  manufacturer's  machinery,  of  a  farmer's  cattle  and 
implements — these  are  largely  matters  of  estimate  and  guess, 
and  it  is  easy  to  make  estimates  universally  moderate.  But 
on  the  face  of  a  security  specific  sums  of  money  are  always 
set  forth ;  and  its  selling  value  is  commonly  a  matter  of  daily 
and  familiar  record  "on  'change."  If  enumerated  and 
valued  for  taxation  at  all,  it  cannot  well  be  dealt  with  other- 
wise than  by  assessment  at  its  actual  worth.  In  the  City  of 
New  York  the  tax  rate  is  usually  about  $20  per  $1,000  of 
value,  land  and  buildings  being  commonly  assessed  at  two- 
thirds  or  at  one-half  of  their  probable  market  price.  Hun- 
dreds of  millions,  very  likely  thousands  of  millions,  of 


426  HEADINGS  IN  CIVIL  GOVERNMENT 

securities  are  held  by  persons  in  that  city,  who,  if  they  con- 
formed to  the  requirements  of  law  and  handed  in  lists  of  their 
taxable  possessions,  would  be  called  on  to  turn  over  to  the 
tax-gatherer  about  one-half  of  the  income  derived  from  these 
securities.  In  the  large  cities  of  the  state  of  Ohio  the  nominal 
tax  rate  is  even  higher — $25  per  $1,000,  and  even  more.  In 
Ohio  an  extraordinary  endeavor  to  enforce  this  impossible 
tax  (for  impossible  it  may  be  fairly  called)  has  been  made 
through  a  system  of  tax  inquisitors,  persons  authorized  to 
ferret  out  the  possessions  of  citizens  subject  to  taxation,  and 
awarded  a  share  in  the  plunder  so  secured.  One  knows  not 
what  feeling  of  revulsion  is  strongest  at  this  spectacle; 
humiliation  that  a  great  free  commonwealth  should  resort  to 
the  worst  devices  of  despotism,  indignation  that  the  state 
should  incite  directly  to  blackmail  and  corruption,  or  amaze- 
ment that  a  cure  for  the  evil  should  be  really  expected  from 
a  remedy  so  ingeniously  designed  to  aggravate  it.  ... 

I  turn  to  another  aspect  of  our  subject.  Some  of  you  will 
say:  "True,  these  are  deplorable  facts;  no  doubt  the  common 
practice  makes  the  system  impossible  of  execution ;  but  is  not 
the  principle  sound?  May  not  better  administration,  and 
reform  throughout,  make  the  traditional  methods  tenable? 
Must  we  give  up  entirely  the  reasonable  taxation  of  the  well- 
to-do  and  the  privileged  because  they  now  evade  unreasonable 
taxes?  These  questions  call  for  attentive  consideration;  ami 
I  propose  now  to  deal  with  them,  pointing  out  the  reasons 
why  the  existing  system,  even  when  reformed  and  white- 
washed, is  not  tenable,  and  why  something  fundamentally 
different  should  be  devised  to  take  its  place. 

Securities  have  been  spoken  of  hitherto  as  if  universally 
subject  to  taxation.  But  this  is  not  the  case.  In  many 
states  corporations  are  taxed,  or  at  least,  are  meant  to  be 
taxed,  on  their  entire  property,  and  some  or  all  of  the 
securities  issued  by  them  are  then  dismissed  from  the  tax- 
gatherer's  ken.  Thus,  in  the  state  of  Massachusetts,  corpora- 
tions organized  under  its  laws  are  taxed  (to  make  a  summary 
statement)  on  the  total  value  of  their  property  as  indicated 


PROBLEMS  OF  TAXATION  427 

by  the  market  value  of  their  outstanding  shares  of  stock; 
thereafter  the  shareholders  who  own  such  stock  are  no  longer 
called  on  to  contribute.  In  Connecticut,  on  a  method  similar 
in  principle,  railways  are  taxed  on  the  total  value  of  their 
outstanding  capitalization — stock  and  bonds  together — and 
the  individual  holders  of  these  securities  are  no  longer  con- 
sidered. Some  such  method  is  coming  into  increasing  use  in 
the  several  states,  where  taxes  on  corporations  are  being 
levied  more  and  more ;  and  the  natural  corollary — the  exemp- 
tion of  the  shareholders  as  such — is  slowly  following. 

The  advantages  of  this  mode  of  taxing  corporate  property 
are  obvious — so  obvious  that  there  is  quite  as  much  danger 
of  its  abuse  as  of  failure  to  use  it.  As  to  most  corporations, 
the  facts  needful  for  a  rigid  assessment  of  taxes  are  easily 
procurable.  The  capital  stock  and  the  bonds  outstanding, 
the  gross  income  and  the  net  income  are  often  matters  of 
public  knowledge;  and,  where  not  so,  can  be  ascertained  by 
the  tax-gatherer  with  comparative  ease.  One  serious  obstacle 
in  the  way  of  the  ordinary  taxation  of  the  property  or  income 
of  individuals  is  avoided.  Since  it  is  not  material  by  whom 
or  in  what  proportions  the  shares  or  securities  of  the  cor- 
poration are  held,  there  is  no  need  of  inquiry  into  what  are 
regarded  by  individuals  as  their  private  affairs — regarded  as 
private  by  Americans  more  jealously  than  by  any  other 
people.  We  need  not  stop  to  consider  what  precise  method 
of  taxing  the  corporations  is  the  best — whether  on  the  basis  of 
capitalization  of  the  total  market  value  of  securities,  of  gross 
earnings,  of  net  earnings,  or  what  not.  No  doubt  different 
methods  would  be  expedient  for  different  classes  of  corpora- 
tions; but  these  are  somewhat  technical  questions,  which  need 
not  engage  our  attention.  It  may  be  noted,  in  passing,  that  a 
method  which  is  susceptible  of  simple  administration  may  be 
preferable  to  one  more  perfect  in  principle  but  less  easy  of 
management;  and  thus  for  example,  taxation  on  the  basis  of 
gross  earnings  or  of  market  value  of  securities  may  be  better 
than  taxation  on  the  more  equitable  but  more  elusive  basis  of 
net  earnings.  Whatever  method  be  used,  the  evidence  of  tax- 


428  READINGS  IN  CIVIL  GOVERNMENT 

able  possessions  is  clearly  more  overt  and  more  easily  con- 
trolled than  could  possibly  be  the  case  as  regards  the  individ- 
ual owners  of  the  corporate  securities. 

80.   THE   CORPORATION  TAX. 

If  the  general  property  tax  is  unsatisfactory,  and  especially  if  all 
that  form  of  property  represented  by  "securities"  is  not  properly 
taxable  as  property,  to  what  source  is  the  State  to  turn  for  its  rev- 
enue? One  of  the  most  prominent  expedients,  the  one  that  has  been 
most  widely  discussed  and  frequently  employed,  is  to  tax  corpora- 
tions. But  this  tax,  while  recognized  as  sound  in  principle,  is  also 
one  of  the  most  difficult  taxes  to  administer  effectively  and  equitably. 
Many  methods  of  levying  the  tax  have  been  tried  with  varying  suc- 
cess. Professor  Seligman  thus  describes  and  criticises  these  several 
forms  of  the  corporation  tax  r1  [1890]. 

First,  the  general  property  tax,  or  the  taxation  of  the 
corporate  realty  plus  its  visible  and  invisible  personalty  at 
its  actual  value.  It  will  not  be  necessary  to  show  the 
inadequacy  of  this  method.  All  the  actual  reforms  are  away 
from  this  primitive  plan.  We  have  seen  in  a  previous 
essay  that  the  standard  of  taxation  is  ability  to  pay,  and  that 
this  ability  is  no  longer  proportional  to  the  general  mass  of 
property.  The  general  property  tax  is  to-day  antiquated. 
When  it  is  levied  by  the  local  assessors,  it  becomes  especially 
unjust.  Even  when  assessed  by  a  separate  st?te  board  it  is 
inexact,  and  exhibits  all  the  defects  of  the  general  property 
tax  on  individuals.  We  may  conclude,  with  the  railroad  tax 
commission  of  1879,  that  as  a  system  it  is  open  to  almost 
every  conceivable  objection. 

The  cost  of  the  property ,  as  a  basis  for  taxation,  is  even 
less  defensible  than  the  value  of  the  property.  For  no  one 
would  assert  that  the  original  cost  of  corporate  property  bears 
any  necessary  relation  to  the  present  value,  much  less  to  its 
present  earning  capacity.  This  method  is  so  obviously  un- 
just as  to  deserve  no  further  mention. 

The  capital  stock  at  its  market  value.    This  plan  is  open 

i  See  above  page  411,  note. 


PEOBLEMS  OF  TAXATION  429 

to  several  vital  objections.  The  idea  is  that  the  market  value 
of  the  stock  will  be  practically  equivalent  to  the  value  of 
the  property,  or,  as  it  is  put  by  some  of  our  state  courts,  that 
the  entire  property  of  a  corporation  is  identical  with  its  stock. 
But  as  I  have  already  observed,  heavily  bonded  corporations 
would  in  this  way  entirely  escape  taxation.  In  such  cases — 
and  they  are  the  great  majority — the  capital  stock  alone 
would  not  represent  the  value  of  the  property.  But  secondly, 
even  in  the  case  of  corporations  without  any  bonded  debt, 
the  tax  is  unjust,  because  it  does  not  necessarily  bear  any 
relation  to  the  earning  capacity.  If  a  company  without 
bonded  debt  pays  dividends,  then  indeed  the  value  of  the 
stock  is  a  fair  index  to  earning  capacity.  Its  value  would 
represent  the  capitalized  earnings.  But  if  there  are  no 
dividends,  the  value  of  the  capital  stock  is  wholly  uncertain 
and  largely  speculative,  depending  on  the  manipulations  of 
the  stock  exchange.  It  frequently  happens  that  non- 
dividend-paying  stock  fluctuates  in  value  from  thirty  to  fifty 
per  cent,  within  one  year.  Clearly  a  method  of  taxation 
which  in  such  large  classes  of  cases  bears  absolutely  no  pro- 
portion to  the  earning  capacity  or  productiveness  of  the 
property  cannot  be  successfully  defended.  We  can  again 
agree  with  the  railroad  tax  commission  in  their  conclusion 
that  the  tax  on  the  value  of  the  capital  stock  is  "clumsy  and 
devoid  of  scientific  merit,"  that  it  "would  admit  of  evasions 
in  a  most  obvious  way"  and  that  "it  is  impossible  of  any 
general  application." 

The  capital  stock  at  its  par  value.  This  method  is  open  to 
all  the  objections  of  the  preceding  and  to  many  more  in  addi- 
tion. Moreover,  it  is  peculiarly  liable  to  evasion.  Thus  in 
New  York  it  is  a  common  practice  for  corporations  to  evade 
the  organization  tax  of  one-eighth  of  one  per  cent,  on  the 
amount  of  the  capital  stock,  by  issuing  a  nominally  small 
capital,  but  selling  it  to  the  stockholders  at  a  premium  of 
several  hundred  per  cent.  The  market  value  of  the  stock  is 
at  once  many  times  the  par  value.  The  sole  recommendation 
of  the  tax  is  the  facility  of  ascertainment.  But  this  does  not 


430  READINGS  IN  CIVIL  GOVERNMENT 

compensate  for  its  obvious  defects.  The  par  value  of  stock 
is  certainly  no  gauge  either  of  the  real  worth  of  the  property 
or  of  its  earning  capacity.  This  is  perhaps  the  least  defen- 
sible of  all  the  methods,  and  merits  no  serious  consideration. 

The  capital  stock  plus  the  bonded  debt  at  tJte  market  value, 
or  more  logically  still,  the  capital  stock  plus  the  total  debt. 
The  justification  for  adding  to  the  value  of  the  stock  the 
value  of  all  that  the  company  owes,  i.  e.,  the  funded  and  the 
unfunded  debt,  is  the  simple  fact  that  the  existence  of  this 
indebtedness  makes  the  stock  worth  just  so  much  less.  The 
sum  of  the  two  elements  is  a  far  better  index  to  the  value  of 
the  property  than  the  capital  stock  alone ;  for  it  prevents  the 
exemption  of  heavily  bonded  companies.  This  method  is 
much  preferable  to  any  that  has  yet  been  discussed.  And 
still  it  is  open  to  some  objections.  Owing  to  the  complica- 
tions of  our  interstate  polity,  the  proceeds  of  the  tax,  in  all 
cases  where  the  stock  and  bonds  of  a  corporation  are  owned 
outside  of  the  commonwealth,  will  accrue  not  to  the  state  of 
the  owner's  residence,  but  to  the  state  where  the  corporate 
property  is  situated.  Secondly,  when  the  tax  is  on  bonds  as 
well  as  on  stock  it  will  be  inadequate,  because  applicable  only 
to  the  bonds  owned  by  residents  of  the  state.  Thirdly  and 
principally,  in  all  those  cases  where  the  corporation  pays  no 
dividends  and  its  stock  nevertheless  possesses  a  speculative 
value,  the  tax  will  not  necessarily  bear  any  relation  to  the 
earning  capacity  or  productiveness  of  the  company,  for  the 
reasons  adduced  above.  In  short,  while  this  method  is  better 
than  the  taxation  of  capital  stock,  it  does  not  avoid  all  the 
objections  that  have  been  urged  against  the  latter. 

There  remain  thus  only  the  taxes  on  earnings,  business, 
dividends  and  profits. 

The  gross  earnings.  This  tax  was  the  one  recommended 
by  the  railroad  tax  commission.  It  possesses  many  undeni- 
able advantages.  The  tax  is  certain,  easily  ascertained,  and 
not  susceptible  of  evasion.  But  it  has  one  fatal  defect.  It 
is  not  proportional  to  the  real  earning  capacity.  It  takes  no 
account  of  the  cost,  nor  does  it  pay  any  regard  to  the 


PKOBLEMS  OF  TAXATION  431 

expenses,  which  may  be  necessary  and  just.  For  example, 
when  the  cost  of  building  a  railroad  is  great,  its  gross  earn- 
ings must  be  correspondingly  large  in  order  to  enable  its 
owners  to  realize  any  fair  return  on  the  investment.  A  tax 
on  gross  earnings  does  not  recognize  this  distinction.  It  dis- 
criminates unfairly  between  companies,  and  makes  a  line 
built  at  great  expense  and  with  great  risk  pay  a  penalty  for 
the  enterprise  of  its  constructors.  Again,  a  gross  earning 
tax  takes  no  account  of  expenses.  Of  two  corporations  which 
have  equally  large  gross  receipts,  one  may  be  in  a  naturally 
disadvantageous  position  which  increases  unduly  the  cost  of 
operation  or  management.  Clearly  its  ability  to  pay  is  not 
so  great  as  that  of  the  rival  company  in  possession  of  natural 
advantages.  In  short,  the  gross  receipts  tax  is  like  the  old 
tithe  on  land,  the  most  primitive  and  the  most  unjust  of  all 
land  taxes.  For  two  pieces  of  land  may  yield  the  same 
product  and  yet,  owing  to  difference  in  the  expenses  of  culti- 
vation, may  bring  in  very  different  profits  to  the  owner.  The 
very  first  development  in  all  early  tax  systems  is  to  replace 
the  tithe  by  a  tax  on  the  value  or  the  profits  of  the  prop- 
erty. .  .  . 

The  dividends  or  the  capital  stock  according  to  dividends. 
The  dividends  tax,  it  may  be  said,  is  good  so  far  as  it  goes. 
But  it  does  not  go  far  enough.  It  is  indeed  true  that 
objections  have  sometimes  been  raised  which  are  of  little 
weight.  Thus  it  has  been  contended  that  this  tax  fails  to 
reach  the  profits  which  are  not  divided  but  simply  put  into 
a  reserve  fund.  Some  commonwealths  have  even  sought  to 
obviate  this  supposed  difficulty  by  providing  that  the  tax 
should  apply  to  the  dividends,  whether  declared  or  merely 
earned  and  not  divided.  But  this  objection  is  of  no  impor- 
tance. For  even  if  the  undivided  earnings  are  not  taxed, 
they  go  into  the  reserve  or  surplus  fund.  As  this  increases 
the  corporate  capital,  it  must  in  the  long  run  lead  to  increased 
earnings  on  the  larger  capital.  And  as  the  surplus  cannot 
be  increased  indefinitely,  it  will  ultimately  find  its  way  to  the 
shareholders  as  dividends,  and  thus  become  liable  to  the  tax. 


432  READINGS  IN  CIVIL  GOVERNMENT 

Another  objection  which  might  be  urged  is  that  a  corpora- 
tion may  devote  a  portion  of  its  earnings  to  new  construction 
or  to  new  equipment.  This  expense  may  be  defrayed  out  of 
profits,  instead  of  from  the  capital  or  construction  fund.  The 
dividends  in  such  a  case,  it  might  be  said,  do  not  represent 
the  actual  earning  capacity  of  the  enterprise.  But  while  this 
is  true  temporarily,  the  improvements  made  by  the  corpora- 
tion necessarily  enhance  the  value  of  the  property  and  lead 
to  ultimately  increased  dividends.  So  that  in  the  long  run 
a  tax  on  dividends  would  still  reach  the  corporation. 

The  real  objection  to  the  dividends  tax  is  of  quite  a  differ- 
ent character.  The  taxation  of  dividends  is  utterly  inade- 
quate when  applied  to  those  corporations  which  have  bonded 
indebtedness.  One  corporation  may  have  only  a  capital  stock 
with  earnings  or  dividends  of  five  per  cent.  Another  cor- 
poration, with  the  same  earnings,  may  have  collected  an 
identical  amount  of  money,  of  which  one-half,  however,  is 
represented  by  five  per  cent,  bonds.  A  tax  on  dividends,  while 
normally  equal,  would  then  be  actually  most  unequal.  The 
one  corporation  would  pay  just  twice  as  much  as  the  other. 
This  objection  has  been  recognized,  but  only  once,  in  Ameri- 
can legislation.  The  United  States  internal  revenue  law  of 
1864  provided  for  a  five  per  cent,  (raised  from  three  per 
cent,  in  1862)  tax,  which,  in  the  case  of  railroads,  canals, 
turnpike,  navigation  and  slackwater  companies,  was  imposed 
on  all  dividends,  as  well  as  on  all  coupons  or  interest  on 
evidences  of  indebtedness  and  on  all  profits  carried  to  the 
amount  of  any  fund.  While  in  the  case  of  those  companies 
which  were  not  presumed  to  have  any  bonded  debt,  like  banks, 
trust  companies,  savings  institutions  and  insurance  com- 
panies, the  tax  was  imposed  only  on  dividends  and  surplus. 
The  federal  law,  indeed,  violated  strict  consistency  in 
imposing  a  gross  earnings  tax  also  on  transportation  and  on 
certain  insurance  companies.  But  the  correct  implication  in 
the  law  was  the  inadequacy  of  a  tax  on  dividends  alone.  In 
fact,  the  objections  to  the  dividends  tax  are  closely  analogous 
to  those  that  we  found  in  the  capital  stock  tax  as  over  against 


PROBLEMS  OF  TAXATION  433 

the  tax  on  stock  plus  debt.  It  reaches  only  a  part  of  the 
corporate  earning  capacity. 

We  thus  come  finally  to  the  tax  on  net  earnings,  or  rather 
on  net  receipts,  profits  or  income.  Net  receipts  form  the 
most  logical  basis  for  corporate  taxation.  The  tax  is  not  un- 
equal in  its  operation  like  the  gross  earnings  tax.  It  holds 
out  no  inducement  to  check  improvements,  like  the  general 
property  tax.  It  is  just ;  it  is  simple ;  it  is  perfectly  propor- 
tional to  productive  capacity.  In  short,  it  satisfies  all  the 
requirements  of  a  scientific  system.  .  .  . 

If  it  should  be  desired  to  obtain  a  more  exact  definition 
of  net  receipts  or  income  in  the  case  of  railroad  companies, 
the  following  would  be  an  economically  sound  method  of  pro- 
ceeding :  Gross  receipts  consist  of  all  earnings  from  transpor- 
tation of  freight  and  passengers,  receipts  from  bonds  and 
stocks  owned,  rents  of  property  and  all  miscellaneous  receipts 
from  ancillary  business  enterprises  or  otherwise.  From 
these  aggregate  gross  receipts  we  should  deduct  what  are 
classified  by  the  Interstate  Commerce  Commission  as  operat- 
ing expenses,  that  is,  expenses  for  conducting  transportation, 
for  maintenance .  of  roadway,  structures  and  equipment,  and 
general  expenses  of  management.  But  no  deduction  should 
be  made  for  fixed  charges,  i.  e.,  for  taxes  or  for  interest  on 
the  debt,  nor  should  any  deduction  be  allowed  for  the  amount 
used  in  new  construction,  betterments,  investments,  new 
equipment  or  any  of  the  expenditures  that  find  their  way 
into  profit  and  loss  account.  The  method  here  suggested 
would  lead  to  the  abolition  of  one  of  the  greatest  abuses  of 
American  railway  management — that  of  putting  all  possible 
expenses  into  the  construction  account.  Our  railways,  for 
example,  frequently  fail  to  charge  the  maintenance  and 
repair  of  their  rolling  stock  to  current  expenses.  When  die 
equipment  has  become  unserviceable,  new  stock  is  bought  and 
charged  to  the  construction  or  the  profit  and  loss  account. 
But  in  the  meantime  the  nominal  earnings  of  the  railway  will 
seem  to  have  been  large,  and  the  managers  will  have  reaped 
whatever  temporary  benefit  they  may  have  desired.  The 
28 


434  READINGS  IN  CIVIL  GOVERNMENT 

taxation  of  net  profit  in  the  sense  that  I  have  indicated  would 
tend  to  check  this  practice,  since  deductions  would  be  allowed 
for  maintenance,  but  not  new  equipment.  A  tax  on  net 
receipts  would  possess  not  only  a  financial,  but  also  a  wider 
economic  advantage. 

81.    THE    INCOME    TAX    AMENDMENT    TO    THE    FEDERAL    CONSTI- 
TUTION. 

The  question  of  levying  a  federal  income  tax  was  not  abandoned 
when  the  law  of  1894  was  declared  void.  The  recent  movement 
toward  tariff  reform  has  witnessed  an  insistent  demand  for  the  re- 
enactment  of  an  income  tax  law.  When  the  tariff  act  of  1909  was 
under  consideration  an  income  tax  was  proposed  and  was  abandoned 
only  because  it  was  found  impossible  to  so  frame  the  provision  that 
it  would  not  meet  the  fate  of  that  of  1894.  To  avoid  this  difficulty 
and  open  the  way  for  the  future  enactment  of  such  a  law,  Congress 
thereupon  adopted  the  following  joint  resolution  which,  having  been 
ratified  by  three- fourths  of  the  states,  became  a  part  of  the  Constitu- 
tion February  3, 1913; 

Resolved  by  the  Senate  and  House  of  Representatives  of  tlic 
United  States  of  America  in  Congress  assembled  (two-thirds 
of  each  House  concurring  therein),  That  the  following 
article  is  proposed  as  an  amendment  to  the  Constitution  of 
the  United  States,  which,  when  ratified  by  the  legislatures  of 
three-fourths  of  the  several  States,  shall  be  valid  to  all  intents 
and  purposes  as  a  part  of  the  Constitution : 

"Article  XVI.  The  Congress  shall  have  power  to  lay  and 
collect  taxes  on  incomes,  from  whatever  source  derived,  with- 
out apportionment  among  the  several  States,  and  without 
regard  to  any  census  or  enumeration. " 

ADDITIONAL  READINGS 

1 — Direct  and  Indirect  Taxation  Compared,  Ely,  R.  C.,  Taxa- 
tion in  American  States  and  Cities,  79-93. 

2— Taxation  of  Incomes,  Ibid.,  287-311. 

3— The  Inequalities  of  the  Direct  Federal  Tax,  Bullock,  C.  J. 
Political  Science  Quarterly,  XV,  470-81. 


CHAPTER  XIX 
GOVEENMENT  FINANCE 

82.    CONGRESSIONAL  FINANCE. 

Since  1886,  when  the  expenditures  of  the  Federal  Government  be- 
gan to  increase  by  leaps  and  bounds,  Congress  has  often  been 
charged  with  extravagance.  A  large  part  of  the  time  of  each  Con- 
gress is,  in  fact,  taken  up  with  the  business  of  discussing  and  ad- 
justing the  several  appropriation  bills  which  provide  for  the  ex- 
penditures of  the  enormous  sums  required  to  carry  on  the  work  of 
the  various  departments.  Mr.  James  Bryce  makes  the  following 
very  just  criticism  of  the  manner  in  which  this  work  is  performed :  -1 

The  Secretary  of  the  Treasury  sends  annually  to  Congress 
a  report  containing  a  statement  of  the  national  income  and 
expenditures  and  of  the  condition  of  the  public  debt,  together 
with  remarks  on  the  system  of  taxation  and  suggestions  for 
its  improvement.  He  also  sends  what  is  called  his  Annual 
Letter,  enclosing  the  estimates,  framed  by  the  various  depart- 
ments, of  the  sums  needed  for  the  public  services  of  the 
United  States  during  the  coming  year.  So  far  the  Secretary 
is  like  a  European  finance  minister,  except  that  he  communi- 
cates with  the  chamber  on  paper  instead  of  making  his  state- 
ment and  proposals  orally.  But  here  the  resemblance  stops. 
Everything  that  remains  in  the  way  of  financial  legislation 
is  done  solely  by  Congress  and  its  committees,  the  executive 
having  no  further  hand  in  the  matter. 

The  business  of  raising  money  belongs  to  one  committee 
only,  the  standing  committee  of  Ways  and  Means,  consisting 
of  eleven  members.  Its  chairman  is  always  a  leading  man  in 
the  party  which  commands  a  majority  in  the  House.  This 

i  See  above  page  261.  note. 

435 


436  READINGS  IN  CIVIL  GOVERNMENT 

committee  prepares  and  reports  to  the  House  the  bills  needed 
for  imposing  or  continuing  the  various  customs  duties,  ex- 
cise duties,  etc.  The  report  of  the  Secretary  has  been  re- 
ferred by  the  House  to  this  committee,  but  the  latter  does 
not  necessarily  base  its  bills  upon  or  in  any  way  regard  that 
report.  Neither  does  it  in  preparing  them  start  from  an 
estimate  of  the  sums  needed  to  support  the  public  service.  It 
does  not,  because  it  cannot;  for  it  does  not  know  what  grants 
for  the  public  service  will  be  proposed  by  spending  commit- 
tees, since  the  estimates  submitted  in  the  Secretary's  letter 
furnish  no  trustworthy  basis  for  a  guess.  It  does  not,  for 
the  further  reason  that  the  primary  object  of  customs  duties 
has  for  many  years  past  been  not  the  raising  of  revenue,  but 
the  protection  of  American  industries  by  subjecting  foreign 
products  to  a  very  high  tariff.  This  tariff,  which  was  fur- 
ther raised  in  1890,  has  brought  in  an  income  far  exceeding 
the  current  needs  of  the  government.  Two-thirds  of  the  war 
debt  having  been  paid  off,  the  fixed  charges  have  shrunk  to 
one-third  of  what  they  were  when  the  war  ended,  yet  this 
tariff  remained  till  1890  with  few  modifications,  surpluses 
constantly  accumulating  in  the  national  treasury,  until  in 
that  year  a,  Pension  Act  was  passed  which  increased  expendi- 
tures so  largely  as  almost  to  absorb  even  the  growing  surplus. 
The  Committee  of  Ways  and  Means  has  therefore  had  no  mo- 
tive for  adapting  taxation  to  expenditure.  The  former  will 
be  always  in  excess  so  long  as  the  protective  tariff  stands,  and 
the  protective  tariff  stands  for  commercial  or  political  reasons 
unconnected  with  national  finance. 

When  the  revenue  bills  come  to  be  debated  in  committee  of 
the  whole  House  similar  causes  prevent  them  from  being 
scrutinized  from  the  purely  financial  point  of  view.  Debate 
turns  on  those  items  of  the  tariff  which  involve  gain  or  loss 
to  influential  groups.  Little  inquiry  is  made  as  to  the 
amount  needed  and  the  adaptation  of  the  bills  to  produce 
that  amount  and  no  more.  It  is  the  same  with  ways  and 
means  bills  in  the  Senate.  Communications  need  not  pass 
between  the  committees  of  either  House  and  the  Treasury. 


GOVERNMENT  FINANCE  437 

The  person  most  responsible,  the  person  who  most  nearly  cor- 
responds to  an  English  Chancellor  of  the  Exchequer,  or  a 
French  Minister  of  Finance,  is  the  chairman  of  the  House 
Committee  of  Ways  and  Means.  But  he  stands  in  no  official 
relation  to  the  Treasury,  and  is  not  required  to  exchange  a 
word  or  a  letter  with  its  staff.  Neither,  of  course,  can  he 
count  on  a  majority  in  the  House.  Though  he  is  a  leading 
man  he  is  not  a  leader,  i.  e.,  he  has  no  claim  on  the  votes 
of  his  own  party,  many  of  whom  may  disapprove  of  and 
cause  the  defeat  of  his  proposals.  This  befell  in  1886,  when 
the  chairman  of  this  committee,  an  able  man,  and  perhaps, 
after  the  Speaker,  the  most  considerable  person  in  the  Demo- 
cratic majority,  was  beaten  in  his  attempted  reform  of  the 
tariff. 

The  business  of  spending  money  used  to  belong  to  the 
Committee  on  Appropriations,  but  in  1883  a  new  committee, 
that  on  Rivers  and  Harbours,  received  a  large  field  of  ex- 
penditure; and  in  1886  sundry  other  supply  bills  were  re- 
ferred to  sundry  standing  committees.  The  Committee  on 
Appropriations  starts  from,  but  does  not  adopt,  the  estimates 
sent  in  by  the  Secretary  of  the  Treasury,  for  the  appropria- 
tion bills  it  prepares  usually  make  large  and  often  reckless 
reductions  in  these  estimates.  The  Rivers  and  Harbours 
Committee  proposes  grants  of  money  for  what  are  called  "in- 
ternal improvements/ '  nominally  in  aid  of  navigation,  but 
practically  in  order  to  turn  a  stream  of  public  money  into  the 
State  or  States  where  each  "improvement"  is  to  be  executed. 
More  money  is  wasted  in  this  way  than  what  the  parsimony 
of  the  Appropriations  Committee  can  save.  Each  of  the  other 
standing  committees,  including  the  Committee  on  Pensions, 
a  source  of  infinite  waste,  proposes  grants  of  money,  not 
knowing  nor  heeding  what  is  being  proposed  by  other  com- 
mittees, and  guided  by  the  executive  no  further  than  the 
members  choose.  All  the  expenditures  recommended  must 
be  met  by  appropriation  bills,  but  into  their  propriety  the 
Appropriation  Committee  cannot  inquire. 

Every  revenue  bill  must,  of  course,  come  before  the  House ; 


438  READINGS  IN  CIVIL  GOVERNMENT 

and  the  House,  whatever  else  it  may  neglect,  never  neglects 
the  discussion  of  taxation  and  money  grants.  These  are  dis- 
cussed as  fully  as  the  pressure  of  work  permits,  and  are  often 
added  to  by  the  insertion  of  fresh  items,  which  members  in- 
terested in  getting  money  voted  for  a  particular  purpose  or 
locality  suggest.  These  bills  then  go  to  the  Senate,  which 
forthwith  refers  them  to  its  committees.  The  Senate  com- 
mittee on  finance  deals  with  the  revenue-raising  bills;  the 
Committee  on  Appropriations  with  supply  bills.  Both  sets 
then  come  before  the  whole  Senate.  Although  it  cannot  ini- 
tiate revenue-raising  bills,  the  Senate  long  ago  made  good 
its  claim  to  amend  appropriation  bills,  and  does  so  freely, 
adding  items  and  often  raising  the  total  of  the  grants.  When 
the  bills  go  back  to  the  House,  the  House  usually  rejects  the 
amendments;  the  Senate  adheres  to  them,  and  a  Conference 
Committee  is  appointed,  consisting  of  three  senators  and  three 
members  of  the  House,  by  which  a  compromise  is  settled, 
hastily  and  in  secret,  and  accepted,  generally  in  the  last  days 
of  the  session,  by  a  hard-pressed  but  reluctant  House.  Even 
as  enlarged  by  this  committee,  the  supply  voted  is  often 
found  inadequate,  so  a  deficiency  bill  is  introduced  in  the 
following  session,  including  a  second  series  of  grants  to  the 
departments. 

The  European  reader  will  ask  how  all  this  is  or  can  be  done 
by  Congress  without  frequent  communication  from  or  to  the 
executive  government.  There  are  such  communications,  for 
the  ministers,  anxious  to  secure  appropriations  adequate  for 
their  respective  departments,  talk  to  the  chairmen  and  ap- 
pear before  the  committee  to  give  evidence  as  to  departmental 
needs.  But  Congress  does  not  look  to  them  for  guidance  as 
in  the  early  days  it  looked  to  Hamilton  and  Gallatin.  If  the 
House  cuts  down  their  estimates  they  turn  to  the  Senate  and 
beg  it  to  restore  the  omitted  items;  if  the  Senate  fail  them, 
the  only  resource  left  is  a  deficiency  bill  in  the  next  session. 
If  one  department  is  so  starved  as  to  be  unable  to  do  its  work, 
while  another  obtains  lavish  grants  which  invite  jobbery  or 
waste,  it  is  the  committees,  not  the  executive,  whom  the  peo- 


GOVERNMENT  FINANCE  439 

pie  ought  to  blame.  If,  by  a  system  of  log-rolling,  vast  sums 
are  wasted  upon  useless  public  works,  no  minister  has  any 
opportunity  to  interfere,  any  right  to  protest.  A  minister 
cannot,  as  in  England,  bring  Congress  to  reason  by  a  threat 
of  resignation,  for  it  would  make  no  difference  to  Congress 
if  the  whole  cabinet  were  to  resign,  unless  of  course  the  con- 
gressmen most  conspicuously  concerned  should  be  so  palpably 
in  fault  that  the  people  could  be  roused  to  vigorous  disap- 
proval. 

What  I  have  stated  may  be  summarized  as  follows: 

There  is  practically  no  connection  between  the  policy  of 
revenue  raising  and  the  policy  of  revenue  spending,  for  these 
are  left  to  different  committees  whose  views  may  be  opposed, 
and  the  majority  in  the  House  has  no  recognized  leaders  to  re- 
mark the  discrepancies  or  make  one  or  other  view  prevail.  In 
the  forty-ninth  Congress  a  strong  free-trader  was  chairman 
of  the  tax-proposing  Committee  on  Ways  and  Means,  while  a 
strong  protectionist  was  chairman  of  the  spending  Committee 
on  Appropriations. 

There  is  no  relation  between  the  amount  proposed  to  be 
spent  in  any  one  year,  and  the  amount  proposed  to  be  raised. 
But  for  the  fact  that  the  high  tariff  has,  until  quite  recently, 
produced  a  large  annual  surplus,  financial  breakdowns  must 
have  ensued. 

The  knowledge  and  experience  of  the  permanent  officials 
either  as  regards  the  productivity  of  taxes,  and  the  incidental 
benefits  or  losses  attending  their  collection,  or  as  regards  the 
nature  of  various  kinds  of  expenditure  and  their  comparative 
utility,  can  be  turned  to  account  only  by  interrogating  these 
officials  before  the  committees.  Their  views  are  not  stated 
in  the  House  by  a  parliamentary  chief,  nor  tested  in  debate 
by  arguments  addressed  to  him  which  he  must  there  and  then 
answer. 

Little  check  exists  on  the  tendency  of  members  to  deplete 
the  public  treasury  by  securing  grants  for  their  friends  or 
constituents,  or  by  putting  through  financial  jobs  for  which 
they  are  to  receive  some  private  consideration.  If  either 


440  READINGS  IN  CIVIL  GOVERNMENT 

the  majority  of  the  Committee  on  Appropriations  or  the 
House  itself  suspects  a  job,  the  grant  proposed  may  be  re- 
jected. But  it  is  the  duty  of  no  one  in  particular  to  scent  out 
a  job,  and  to  defeat  it  by  public  exposure. 

The  nation  becomes  so  puzzled  by  a  financial  policy  vary- 
ing from  year  to  year,  and  controlled  by  no  responsible  lead- 
ers, as  to  feel  diminished  interest  in  congressional  discussions 
and  diminished  confidence  in  Congress. 

The  result  on  the  national  finance  is  unfortunate.  A 
thoughtful  American  publicist  remarks,  * '  So  long  as  the  debit 
side  of  the  national  account  is  managed  by  one  set  of  men,  and 
the  credit  side  by  another  set,  both  sets  working  separately 
and  in  secret  without  public  responsibility,  and  without  in- 
tervention on  the  part  of  the  executive  official  who  is  nom- 
inally responsible;  so  long  as  these  sets,  being  composed 
largely  of  new  men  every  two  years,  give  no  attention  to 
business  except  when  Congress  is  in  session,  and  thus  spend 
in  preparing  plans  the  whole  time  which  ought  to  be  spent 
in  public  discussion  of  plans  already  matured,  so  that  an  im- 
mense budget  is  rushed  through  without  discussion  in  a  week 
or  ten  days — just  so  long  the  finances  will  go  from  bad  to 
worse,  no  matter  by  what  name  you  call  the  party  in  power. 
No  other  nation  on  earth  attempts  such  a  thing,  or  could  at- 
tempt it  without  soon  coming  to  grief,  our  salvation  thus  far 
consisting  in  an  enormous  income,  with  practically  no  drain 
for  military  expenditure. " 

It  may  be  replied  to  this  criticism  that  the  enormous  in- 
come, added  to  the  fact  that  the  tariff  is  imposed  for  pro- 
tection rather  than  for  revenue,  is  not  only  the  salvation  of 
the  United  States  Government  under  the  present  system,  but 
also  the  cause  of  that  system.  Were  the  tariff  framed  with 
a  view  to  revenue  only,  no  higher  taxes  would  be  imposed 
than  the  public  service  required,  and  a  better  method  of  bal- 
ancing the  public  accounts  would  follow.  This  is  true.  The 
present  state  of  things  is  evidently  exceptional.  America  is 
the  only  country  in  the  world  whose  difficulty  is  not  to  raise 


GOVERNMENT  FINANCE  441 

money,  but  to  spend  it.     But  it  is  equally  true  that  Congress 
is  contracting  lax  habits,  and  ought  to  change  them. 

83.    THE   UNDERWOOD   TARIFF,    1913. 

The  great  revenue  measure  of  the  national  government  is  the  tariff 
law.  This  law  is  not  enacted  annually,  as  are  the  appropriation 
measures,  but  once  adopted  is  allowed  to  stand  until  industrial  or 
political  changes  necessitate  a  reform.  Such  an  occasion  arose  in 
1913  and,  like  a  similar  occasion  in  1909,  was  considered  of  sufficient 
importance  to  warrant  the  assembling  of  a  special  session  of  Con- 
gress. In  anticipation  of  this  event  the  Committee  of  Ways  and 
Means  of  the  House  and  the  Finance  Committee  of  the  Senate  had 
been  engaged  almost  constantly  for  several  months  in  the  collection 
of  data  from  which  the  new  tariff  could  be  formulated.  Public 
hearings  were  given  by  these  committees  which  were  attended  by 
manufacturers  and  importers  from  all  parts  of  the  country  and 
which  resulted  in  the  collection  of  an  enormous  mass  of  testimony 
and  information  regarding  the  effect  of  the  several  rates  of  duty 
upon  various  business  interests.  Upon  the  basis  of  the  evidence  thus 
collected,  Mr.  Underwood,  Chairman  of  the  Ways  and  Means  Com- 
mittee, framed  a  bill  which  he  introduced  immediately  after  the 
assembling  of  the  special  session  called  by  President  Wilson  on  April 
7.  On  May  9  the  bill  passed  the  House  and  went  to  the  Senate, 
where,  after  four  months'  consideration  and  the  addition  of  676 
amendments,  it  was  passed  on  September  9.  The  measure  was  then 
sent  to  a  Conference  Committee  which,  having  reconciled  the  differ- 
ences between  the  two  houses,  reported  on  September  29.  The  bill 
then  finally  passed  the  House  on  October  1,  the  Senate  on  October 
2,  and  was  signed  by  the  President  on  October  3. 

The  significant  features  of  the  law  thus  enacted  are,  the  reduction 
of  the  duties  levied  from  an  average  of  40.12  per  centum  in  the 
Payne- Aldrich  Tariff,  to  26  per  centum  in  the  Underwood  Tariff,  this 
being  a  lower  average  duty  than  any  since  the  tariff  of  1857 ;  a  large 
increase  in  the  free  list  including  wool,  sugar  (after  the  expiration  of 
three  years),  wheat,  flour,  meat,  lumber,  boots  and  shoes;  and  the 
inclusion  of  a  tax  on  all  incomes  exceeding  $3,000.  The  following 
extracts  will  serve  to  illustrate  the  manner  in  which  the  duties  are 
arranged. 

Be  it  enacted  ~by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  That 


442  READINGS  IN  CIVIL  GOVERNMENT 

on  and  after  the  day  following  the  passage  of  this  Act,  except 
as  otherwise  specially  provided  for  in  this  Act,  there  shall 
be  levied,  collected,  and  paid  upon  all  articles  when  im- 
ported from  any  foreign  country  into  the  United  States  or 
into  any  of  its  possessions  (except  the  Philippine  Islands  and 
the  island  of  Guam  and  Tutuila)  the  rates  of  duty  which  are 
by  the  schedules  and  paragraphs  of  the  dutiable  list  of  this 
section  prescribed,  namely: 

DUTIABLE  LIST. 

Schedule  A:    Chemicals,  Oil  and  Paints. 
1.  Acids:    Boracic  acid,  %  cents  per  pound;  citric  acid, 
5  cents  per  pound;  formic  acid,  iy2  cents  per  pound. 

12.  Bleaching  powder,  or  chloride  of  lime,  Vio  cen^  Per 
pound. 

66.  Soaps:     Perfumed  toilet  soaps,  30  per  centum  ad  va- 
lorem; medicinal  soaps,  20  per  centum  ad  valorem;  castile 
soap,  and  unperfumed  toilet  soap,  10  per  centum  ad  valorem. 

67.  Soda:    Benzoate  of,  5  cents  per  pound. 

68.  Sponges:     Trimmed  or  untrimmed  but  not  advanced 
in  value  by  chemical  processes,  10  per  centum  ad  valorem. 

Schedule  B:    Earths,  Earthenware  and  Glassware. 

71.  Fire  brick,  magnesite  brick,  chrome  brick,  and  brick 
not  specially  provided  for  in  this  section,  not  glazed,  enam- 
eled, painted,  vitrified,  ornamented,  or  decorated  in  any 
manner,  10  per  centum  ad  valorem. 

73.  Lime,  5  per  centum  ad  valorem. 

Schedule  C:    Metals  and  Manufactures  of. 

119.  Automobiles,  valued  at  $2,000  or  more,  and  automo- 
bile bodies,  45  per  centum  ad  valorem. 

120.  Bicycles,  motor  cycles,  and  finished  parts  thereof,  not 
including  tires,  25  per  centum  ad  valorem. 

132.  Muskets,  air-rifles,  muzzle-loading  shotguns  and  rifles, 
and  parts  thereof,  15  per  centum  ad  valorem. 


GOVERNMENT  FINANCE  443 

Schedule  D:    Wood  and  Manufactures  of. 
170.  Paving   posts,    railroad    ties,    and   telephone,    trolley, 
electric-light  and  telegraph  poles  of  cedar  or  other  woods, 
10  per  centum  ad  valorem. 

173.  Chair  cane  or  reeds  wrought  or  manufactured  from 
rattans  or  reeds,  10  per  centum  ad  valorem. 

174.  Toothpicks  of  wood  or  other  vegetable  substance,  25 
per  centum  ad  valorem. 

Schedule  E:    Sugar,  Molasses  and  Manufactures  of. 

177.  Sugars,  tank  bottoms,  sirups  of  cane  juice,  melada, 
concentrated  melada,  concrete  and  concentrated  molasses, 
testing  by  the  polariscope  not  above  seventy-five  degrees,  sev- 
enty-one one  hundredths  of  1  cent  per  pound.  .  .  .  Pro- 
vided, That  on  and  after  the  first  day  of  May,  nineteen  hun- 
dred and  sixteen,  the  articles  hereinbefore  enumerated  in  this 
paragraph  shall  be  admitted  free  of  duty. 

Schedule  F:    Tobacco  and  Manufactures  of. 

181.  Wrapper  tobacco,  and  filler  tobacco  when  mixed  or 
packed  with  more  than  15  per  centum  of  wrapper  tobacco,  and 
all  leaf  tobacco  the  product  of  two  or  more  countries  or  de- 
pendencies when  mixed  or  packed  together,  if  unstemmed, 
$1.85  per  pound ;  if  stemmed,  $2.50  per  pound. 

185.  Cigars,   cigarettes,   cheroots   of   all  kinds,   $4.50   per 
pound  and  25  per  centum  ad  valorem. 

Schedule  G:    Agricultural  Products  and  Provisions. 

186.  Horses  and  mules,  10  per  centum  ad  valorem. 
192.  Oats,  6  cents  per  bushel  of  thirty-two  pounds. 

195.  Butter  and  butter  substitutes,  2y2  cents  per  pound. 

196.  Cheese  and  substitutes  therefor,  20  per  centum  ad  va- 
lorem. 

215.  Vegetables  in  their  natural  state,  not  specially  pro- 
vided for  in  this  section,  15  per  centum  ad  valorem. 

Schedule  H:    Spirits,  Wines  and  Other  Beverages. 
237.  Brandy  and  other  spirits  manufactured  or  distilled 


444  READINGS  IN  CIVIL  GOVERNMENT 

from  grain  or  other  materials,  and  not  specially  provided  for 
in  this  section,  $2.60  per  proof  gallon. 

242.  Bay  rum  or  bay  water,  whether  distilled  or  com- 
pounded, of  first  proof,  and  in  proportion  for  any  greater 
strength  than  first  proof,  $1.75  per  gallon. 

Schedule  I:    Cotton  Manufactures. 

251.  Spool  thread  of  cotton,  crochet,  darning,  and  embroid- 
ery cottons,  on  spools,  reels,  or  balls,  or  in  skeins,  cones,  or 
tubes,  or  in  any  other  form,  15  per  centum  ad  valorem. 

252.  Cotton   cloth,   not   bleached,   dyed,   colored,    printed, 
woven  figured,  or  mercerized  containing  yarns  the  average 
number  of  which  does  not  exceed  number  nine,  ?V2  per  centum 
ad  valorem. 

256.  Clothing,  ready-made,  and  articles  of  wearing  apparel 
of  every  description,  composed  of  cotton  or  other  vegetable 
fiber,  .  .  .  made  up  or  manufactured,  wholly  or  in  part,  by 
the  tailor,  seamstress,  or  manufacturer,  and  not  other \vise 
specially  provided  for  in  this  section,  30  per  centum  ad  va- 
lorem. 

Schedule  J:    Flax,  Hemp  and  Jute,  and  Manufactures  of. 

272.  Floor  mattings,  plain,  fancy,  or  figured  .  .  .  in- 
cluding what  are  commonly  known  as  China,  Jr.pan,  and  India 
straw  matting,  2%  cents  per  square  yard. 

277.  Shirt  collars  and  cuffs,  composed  in  whole  or  in  part 
^>f  linen,  30  per  centum  ad  valorem. 

Schedule  K:    Wool  and  Manufactures  of. 

291.  Clothing,  ready-made,  and  articles  of  wearing  apparel 
of  every  description,  including  shawls  whether  knitted  or 
woven,  and  knitted  articles  of  every  description  made  up  or 
manufactured  wholly  or  in  part,  and  not  specially  provided 
for  in  this  section,  composed  wholly  or  in  chief  value  of  wool, 
35  per  centum  ad  valorem. 

298.  Treble  ingrain,  three-ply,  and  all  chain  Venetian  car- 
pets, 20  per  centum  ad  valorem. 


GOVERNMENT  FINANCE  445 

Schedule  L:    Silks  and  Silk  Goods. 

317.  Clothing,  ready-made,  and  articles  of  wearing  apparel 
of  every  description,  including  knit  goods,  made  up  or  manu- 
factured in  whole  or  in  part  ...  all  the  foregoing  com- 
posed of  silk  .  .  .  not  specially  provided  for  in  this  sec- 
tion, 50  per  centum  ad  valorem. 

Schedule  M:    Papers  and  Books. 

322.  Printing  paper  .  .  .  suitable  for  the  printing  of 
books  and  newspapers,  but  not  for  covers  or  bindings  .  .  . 
valued  above  2%  cents  per  pound,  12  per  centum  ad  va- 
lorem. 

329.  Books  of  all  kinds,  bound  or  unbound  .  .  .  not 
specially  provided  for  in  this  section,  15  per  centum  ad  va- 
lorem. 

Schedule  N:    Sundries. 

333.  Beads  and  spangles  .  .  .  35  per  centum  ad  va- 
lorem. 

336.  Brooms,  made  of  broom  corn,  straw,  wooden  fibre,  or 
twigs,  15  per  centum  ad  valorem. 

354.  Hats,  bonnets,  or  hoods,  for  men's,  women's,  boys', 
or  children 's  wear,  trimmed  or  untrimmed  .  .  .  composed 
wholly  or  in  chief  value  of  fur  ...  45  per  centum  ad 
valorem. 

FREE  LIST. 

That  on  and  after  the  day  following  the  passage  of  this 
Act,  except  as  otherwise  specially  provided  for  in  this 
Act,  the  articles  mentioned  in  the  following  paragraphs  shall 
.  .  .  be  exempt  from  duty. 

425.  Books,  maps,  music,  engravings     .     .     .     which  shall 
have  been  printed  more  than  twenty  years  at  the  date  of  im- 
portation. 

426.  Books  and  pamphlets  printed  wholly  or  chiefly  in  lan- 
guages other  than  English;  also  books  and  music,  in  raised 
print,  used  exclusively  by  the  blind,  and  all  textbooks  used 
in  schools  and  other  educational  institutions. 


446  HEADINGS  IN  CIVIL  GOVERNMENT 

441.  Cash  registers,  linotype  and  all  typesetting  machines. 

457.  Coffee. 

545.  Meats:     Fresh  beef,  veal,  mutton,  lamb  and  pork. 

644.  Wheat,  wheat  flour,  semolina,  and  other  wheat  prod- 
ucts. 

650.  Wool  of  the  sheep,  hair  of  the  camel,  and  other  like 
animals. 

Section  II. 

A.  Subdivision  1.  That  there  shall  be  levied,  assessed,  col- 
lected and  paid  annually  upon  the  entire  net  income  aris- 
ing or  accruing  from  all  sources  in  the  preceding  calendar 
year  to  every  citizen  of  the  United  States,  whether  residing 
at  home  or  abroad,   and  to  every  person  residing  in   the 
United  States,  though  not  a  citizen  thereof,  a  tax  of  1  per 
centum  per  annum  upon  such  income,  except  as  hereinafter 
provided. 

Subdivision  2.  In  addition  to  the  income  tax  provided  un- 
der this  section  (herein  referred  to  as  the  normal  income 
tax)  there  shall  be  levied,  assessed,  and  collected  upon  the 
net  income  of  every  individual  an  additional  income  tax 
(herein  referred  to  as  the  additional  tax)  of  1  per  centum 
per  annum  upon  the  amount  by  which  the  total  net  income 
exceeds  $20,000,  and  does  not  exceed  $50,000,  and  2  per 
centum  per  annum  upon  the  amount  by  which  the  total  net 
income  exceeds  $50,000,  and  does  not  exceed  $75,000,  3  per 
centum  per  annum  upon  the  amount  by  which  the  total  net 
income  exceeds  $75,000,  and  does  not  exceed  $100,000,  4  per 
centum  per  annum  upon  the  amount  by  which  the  total 
net  income  exceeds  $100,000,  and  does  not  exceed  $250,000,  5 
per  centum  per  annum  upon  the  amount  by  which  the  total 
net  income  exceeds  $250,000,  and  does  not  exceed  $500,000, 
and  6  per  centum  per  annum  upon  the  amount  by  which  the 
total  net  income  exceeds  $500,000. 

B.  .     .     .     That  in  computing  net  income  for  the  purpose 
of  the  normal  tax  there  shall  be  allowed  as  deductions :     First, 


GOVERNMENT  FINANCE  447 

the  necessary  expenses  actually  paid  in  carrying  on  any  busi- 
ness, not  including  personal,  living,  or  family  expenses;  sec- 
ond, all  interest  paid  within  the  year  by  a  taxable  person 
on  indebtedness;  third,  all  national,  State,  county,  school, 
and  municipal  taxes  paid  within  the  year,  not  including  those 
assessed  against  local  benefits  .  .  .  fifth,  debts  due  to 
the  taxpayer  actually  ascertained  to  be  worthless  and  charged 
off  within  the  year  .  .  .  seventh,  the  amount  received  as 
dividends  upon  the  stock  or  from  the  net  earnings  of  any 
corporation,  joint  stock  company,  association,  or  insurance 
company  which  is  taxable  upon  its  net  income  as  hereinafter 
provided;  eighth,  the  amount  of  income,  the  tax  upon  which 
has  been  paid  or  withheld  for  payment  at  the  source  of  the 
income,  under  the  provisions  of  this  section.  .  .  . 

That  in  computing  net  income  under  this  section  there 
shall  be  excluded  the  interest  upon  the  obligations  of  a 
State  or  any  political  subdivision  thereof,  and  upon  the  obli- 
gations of  the  United  States  or  its  possessions;  also  the  com- 
pensation of  the  present  President  of  the  United  States  dur- 
ing the  term  for  which  he  has  been  elected,  and  of  the  judges 
of  the  supreme  and  inferior  courts  of  the  United  States  now 
in  office,  and  the  compensation  of  all  officers  and  employees  of 
a  State  or  any  political  subdivision  thereof  except  when  such 
compensation  is  paid  by  the  United  States  Government. 

C.  That  there  shall  be  deducted  from  the  amount  of  the 
net  income  of  each  of  said  persons,  ascertained  as  provided 
herein,  the  sum  of  $3,000,  plus  $1,000,  additional  if  the  per- 
son making  the  return  be  a  married  man  with  a  wife  living 
with  him,  or  plus  the  sum  of  $1,000  additional  if  the  per- 
son making  the  return  be  a  married  woman  with  a  husband 
living  with  her;  but  in  no  event  shall  this  additional  ex- 
emption of  $1,000  be  deducted  by  both  a  husband  and  a  wife ; 
Provided,  That  only  one  deduction  of  $4,000  shall  be  made 
from  the  aggregate  income  of  both  husband  and  wife  when 
living  together.  .  .  . 

G.  (a)  That  the  normal  tax  hereinbefore  imposed  upon 
individuals  likewise  shall  be  levied,  assessed,  and  paid  annu- 


448  READINGS  IN  CIVIL  GOVERNMENT 

ally  upon  the  entire  net  income  arising  or  accruing  from  all 
sources  during  the  preceding  calendar  year  to  every  corpora- 
tion, joint  stock  company  or  association,  and  every  insurance 
company,  organized  in  the  United  States  no  matter  how  cre- 
ated or  organized,  not  including  partnerships;  but  if  organ- 
ized, authorized,  or  existing  under  the  laws  of  any  foreign 
country,  then  upon  the  amount  of  net  income  accruing  from 
business  transacted  and  capital  invested  within  the  United 
States  during  such  year. 

84.    COLLECTION    OF    THE    REVENUE. 

The  following  description  of  the  method  of  collecting  the  federal 
revenue  is  taken  from  Professor  D.  R.  Dewey's  "Financial  History 
of  the  United  States  " : 

The  collection  of  the  revenue  is  divided  between  two 
branches  of  the  treasury  department — one  for  customs  duties, 
and  the  other  for  internal  revenue  taxes.  The  internal  reve- 
nue service  is  organized  into  a  separate  bureau  under  a  com- 
missioner of  internal  revenue,  but  the  local  customs  officials 
report  directly  to  the  secretary  of  the  treasury.  The  country- 
is  divided  into  121  customs  districts,  in  each  of  which  there  is 
at  least  one  port  of  entry,  where  are  stationed  the  principal 
officer  of  the  district,  the  collector  of  customs,  assisted  by  sub- 
ordinate grades  of  officials,  appraisers,  including  in  a  few  of- 
fices, a  naval  officer  and  surveyors,  and  in  all  offices  inspectors, 
special  agents,  etc.  If  commercial  needs  demand  it,  other 
ports  of  delivery  are  designated  within  the  district,  and  at 
these  subordinate  officials  are  stationed.  The  largest  port 
of  entry  is  New  York  City,  through  which  flows  two-thirds  of 
the  whole  foreign  commerce  of  the  United  States.  More  than 
5,000  persons  are  employed  in  the  collection  of  the  customs 
duties;  and  the  annual  expense  of  collecting  this  class  of 
revenue  is  about  4  per  cent,  of  the  receipts.  Inasmuch  as 
foreign  commerce  has  now  become  insignificant  in  many  of 
the  ports  which  were  important  a  century  ago  when  the  dis- 
tricting was  established,  the  expense  of  administration  might 


GOVERNMENT  FINANCE  449 

be  reduced  if  the  customs  districts  were  organized  according  to 
existing  commercial  conditions.  In  many  of  the  districts  the 
cost  of  collection  exceeds  the  revenue  collected ;  at  such  places 
subordinate  officers  might  well  perform  all  the  duties  re- 
quired; but  any  attempt  to  deprive  a  State  of  an  established 
administrative  district  with  its  attendant  political  preroga- 
tives strikes  against  local  opposition,  which  is  instantly  re- 
flected in  Congress. 

The  method  of  entering  an  importation  of  foreign  goods, 
including  the  appraisement  and  payment  of  duties,  has  gone 
through  many  variations,  but  is  now  briefly  as  follows:  The 
initial  step  is  the  authentication  of  an  invoice  of  the  goods 
by  the  American  consular  officer  in  the  district  from  which 
the  foreign  goods  are  exported  to  this  country;  the  certificate 
must  state  the  market  or  wholesale  price  in  the  country  of  ex- 
port; and  the  consular  authentication  is  made  in  triplicate, 
one  for  the  shipper  to  be  used  in  making  entry  at  the  Ameri- 
can port,  one  is  transmitted  to  the  collector  of  the  port  of 
entry,  and  the  other  is  filed  in  the  consul's  office.  The  in- 
voice is  more  than  a  formal  declaration  of  value ;  it  must  con- 
tain a  description  of  the  merchandise,  with  its  cost,  discounts, 
charges,  etc.  Armed  with  this  certificate,  upon  arrival  of 
the  goods,  the  importer  makes  an  entry;  he  submits  a  descrip- 
tion with  the  rates  of  duty  which  he  considers  applicable  and 
pays  into  the  custom  house  the  gross  amount  thus  computed; 
an  immediate  delivery  of  the  goods  is  then  granted,  the  gov- 
ernment retaining  one  package  in  every  ten  as  a  sample. 
These  packages  are  sent  to  the  public  stores  or  appraisers' 
warehouses  for  examination;  if  the  appraisement  does  not 
agree  with  the  valuation  made,  a  re-settlement  is  ordered,  and 
if  the  proper  valuation  has  not  been  declared  by  the  importer, 
whether  through  ignorance  or  fault,  severe  penalties  may  be 
incurred.  An  excessive  valuation  by  the  shipper  is  never 
lowered,  but  an  undervaluation  is  punished  under  the  present 
law  by  the  imposition  of  an  additional  duty  of  one  per  cent, 
upon  the  appraised  value  for  each  one  per  cent,  that  the  ap- 
praisers' value  exceeds  that  declared  in  the  entry.  Oppor- 
29 


450  READINGS  IN  CIVIL  GOVERNMENT 

tunity  is  given  to  the  importer  who  does  not  wish  to  use  his 
goods  at  once,  to  deposit  them  under  bond  in  a  warehouse  for 
not  more  than  three  years,  and  to  defer  the  payment  of  the 
duties  until  withdrawal. 

The  principal  difficulty  in  the  administration  of  the  cus- 
toms for  many  years  lay  in  the  persistent  practice  of  under- 
valuation. Some  of  the  efforts  to  check  this  evil  have  already 
been  discussed,  but  the  difficulty  long  remained  and  has  not 
yet  entirely  disappeared.  The  trouble  was  aggravated  by  the 
habit  of  consigning  goods  by  foreign  firms  to  agents  in  Amer- 
ica, so  that  the  buyer  and  the  seller  were  practically  the  same, 
and  could  agree  on  any  valuation  that  pleased  them.  In 
1885  Secretary  Manning  asserted  that  very  extensive  frauds 
were  due  to  this  agency  system ;  a  foreign  manufacturer  would 
refuse  to  sell  goods  to  other  buyers,  and  then  insist  that  no 
manufactured  articles  similar  to  those  consigned  to  this  coun- 
try were  sold  in  his  market,  and  hence  that  thare  could  be 
no  market  value  at  that  place  in  the  sense  intended  by  law. 
Repeated  decisions  of  the  courts  adverse  to  such  juggling 
with  the  plain  intent  of  the  law  did  not  put  an  end  to  frauds. 

Ingenious  methods  have  been  devised  to  evade  the  customs ; 
for  example,  when  coverings  came  in  free,  articles  of  small 
value  were  enclosed  in  valuable  coverings;  sugar  was  arti- 
ficially colored  so  as  to  imitate  standards  which  entered  at 
lower  rates  of  duty.  One  method  was  that  of  fictitious  in- 
voice; articles  were  shipped  by  an  agent  of  the  American 
buyer  in  Paris  to  his  agent  in  New  York  with  a  fictitious  and 
fraudulent  invoice;  the  buyer  often  persuading  himself  that 
he,  as  a  passive  recipient,  was  free  from  wrong  or  illegal  be- 
havior. Even  among  honest  merchants,  the  administration 
of  the  tariff  since  the  Civil  War  has  been  puzzling,  because  of 
the  increasing  complexity  in  the  schedules  and  consequent 
inequalities  in  classification  and  valuation.  Where  no  open 
fraud  was  intended,  there  was  great  opportunity  for  entries 
which  would  defeat  the  express  purpose  of  the  tariff  acts,  es- 
pecially in  the  confusion  created  by  the  varying  classification 
between  "worsted"  and  "woollens,"  goods  which  as  far  as 


GOVERNMENT  FINANCE  451 

use  was  concerned,  were  becoming  more  and  more  identical, 
in  1886  it  was  stated  that  90  per  cent,  of  the  silk  importa- 
tions were  as  a  rule  undervalued;  and  so  great  were  the 
apparent  difficulties  of  securing  an  equal  and  just  administra- 
tion of  the  law,  that  the  Democratic  secretary  of  the  treas- 
ury, representing  a  party  generally  standing  for  ad  valorem 
rather  than  specific  duties,  recommended  specific  duties  on 
silks.  Much  litigation  grew  out  of  the  frequent  changes  in 
classification ;  and  suits  were  entered  much  more  rapidly  than 
the  courts  could  dispose  of  them. 

A  special  effort  was  made  in  1885  to  remedy  some  of  these 
evils  and  simplify  the  administration,  and  a  bill  originally 
drawn  by  Secretary  Manning  became  the  basis  of  the  so- 
called  McKinley  administrative  act  of  1890.  The  stringency 
of  the  provisions  to  prevent  fraud  was  increased;  additional 
penalties  were  provided  for  undervaluation,  and  the  number  of 
general  appraisers  was  increased  in  order  to  correct  inequali- 
ties in  the  appraisement  at  different  ports.  The  appraisers 
were  organized  into  boards  or  courts  for  the  prompt  settle- 
ment of  questions  of  appeal.  On  a  simple  question  of  value, 
a  board  of  three  general  appraisers  is  a  tribunal  of  last  re- 
sort, and  this  simple  device  has  greatly  expedited  the  cus- 
toms business.  A  further  appeal  to  the  United  States  courts 
lies  only  in  case  of  alleged  illegal  or  irregular  procedure  by 
the  government  officials  in  arriving  at  the  valuation.  On  the 
equally  important  question  of  classification,  another  board  of 
general  appraisers  acts  as  a  judicial  court,  but  in  cases  of 
this  character,  there  is  the  right  of  appeal  to  the  federal 
courts  either  by  the  importer  or  by  the  government. 

The  administration  of  the  internal  revenue  service  does  not 
at  present  involve  many  special  difficulties,  for  questions  of 
valuation  and  classification  are  easy  to  settle.  Great  and 
notorious  frauds  and  scandals  did  spring  up  from  the  opera- 
tions of  the  Whiskey  Ring,  especially  in  the  years  1872-1875, 
and  high  government  officials  were  involved,  but  these  were 
instances  of  bribery  and  defiance  of  law,  and  the  corrupt  prac- 
tices are  to  be  interpreted  as  one  of  the  symptoms  of  a  de- 


452  READINGS  IN  CIVIL  GOVERNMENT 

based  tone  of  business  and  political  life,  rather  than  a  defect 
in  the  revenue  system.  At  present  the  illicit  distillation 
of  whiskey  is  for  the  most  part  confined  to  the  mountain  dis- 
tricts of  the  South,  where  moonshiners  operate  on  a  small 
scale.  The  system  has  now  been  so  long  established  that  at- 
tempts to  evade  the  tax,  by  illicit  distillation  or  fraudulent 
packages,  are  rare.  Under  the  jurisdiction  of  the  commis- 
sioner of  internal  revenue  are  63  district  collectors,  and  a 
force  of  special  agents  who  watch  distilleries  and  ferret  out 
frauds. 

85.   MUNICIPAL  FINANCE  ADMINISTRATION. 

The  following  description  of  the  administration  of  the  finances  of 
cities  is  taken  from  Professor  Fairlie's  recent  book  on  Municipal 
Administration : x 

The  budget  arrangements  in  American  cities  offer  a  wide 
variety,  which  it  is  impossible  to  reduce  to  any  general  state- 
ment. One  distinguishing  feature  of  the  American  arrange- 
ments is  that  the  budgets  are  prepared  by  local  officials 
subject  to  no  administrative  control,  although  there  are  legis- 
lative statutes  regulating  and  restricting  the  total  amount  of 
municipal  debt  that  may  be  incurred,  special  statutes  making 
certain  items  of  expenditure  compulsory  in  particular  cities, 
and  in  some  cases  statutes  restricting  the  amount  of  the  total 
tax  levy.  Of  the  variety  of  local  budget  methods,  two  con- 
trasting systems  may  be  described :  the  council  system,  which 
was  formerly  universal,  and  the  board  of  estimate  plan. 

In  the  original  council  system  the  various  spending  depart- 
ments submit  to  the  council  estimates  of  the  amount  needed 
or  wanted  for  the  following  year.  These  estimates  are  con- 
sidered either  by  a  single  appropriation  committee,  or  by 
several  committees ;  and  an  appropriation  bill  is  prepared,  dis- 
cussed by  the  council,  and  passed  subject  to  the  mayor's  lim- 
ited veto  power.  The  final  bill  will  usually  vary  widely 

i  Reprinted  from  Fairlie,  J.  A.,  Municipal  Administration,  by  per- 
mission of  MacMillan  and  Company. 


GOVERNMENT  FINANCE  453 

from  the  department  estimates,  and  the  responsibility  for  the 
accepted  budget  rests  with  the  appropriation  committees  or 
the  council  as  a  whole.  This  system  has  in  many  cities  tended 
toward  extravagance,  since  the  members  of  the  council  have 
been  more  interested  in  securing  improvements  than  in  re- 
ducing taxation ;  and  it  is  on  this  account  that  there  has  been 
introduced  in  most  of  the  large  cities  a  board  of  estimate,  or 
similar  authority,  with  more  or  less  power  over  the  prepara- 
tion of  the  budget.  The  powers  of  this  board  are  most  ex- 
tensive in  New  York  city.  The  board  there  has  consisted  of 
the  mayor,  the  comptroller,  the  president  of  the  department 
of  taxes  and  assessments,  the  corporation  counsel,  and  the 
president  of  the  council — all  but  one  administrative  officials, 
but  officials  not  connected  with  any  of  the  large  spending  de- 
partments. The  mayor,  comptroller,  and  president  of  the 
council  were  each  elected  by  popular  vote;  the  other  two  of- 
ficials were  appointed  by  the  mayor,  so  that  the  latter  and 
his  appointees  could  control  the  board.  In  1902  a  new  or- 
ganization goes  into  effect.  The  presidents  of  the  five  bor- 
oughs into  which  New  York  is  divided  are  admitted  to  the 
board;  and  the  various  members  are  given  different  voting 
strength.  The  elected  members  will  control  the  board;  but 
the  borough  presidents  will  be  officers  directly  interested  in 
expenditures  on  public  works. 

To  this  board  each  department  submits  its  estimates  with 
comparative  figures  for  the  preceding  year.  'Each  depart- 
ment estimate  is  considered  by  the  board  after  consultation 
with  the  head  of  the  department,  and  the  budget  of  expendi- 
tures is  drawn  up  by  the  board  and  submitted  to  the  munici- 
pal assembly.  The  assembly,  under  the  charter  of  1897,  has 
no  authority  to  increase  any  item  in  the  budget,  but  may  by 
a  three-quarters  vote  decrease  the  amounts  fixed  by  the  board 
of  assessment.  Finally,  the  mayor  may  veto  any  item  in  an 
appropriation  bill,  and  this  veto  can  be  overruled  only  by  a 
five-sixths  vote  of  all  the  members  of  each  house. 

The  total  regular  appropriations  for  the  year  being  deter- 
mined in  one  way  or  another  the  process  of  determining  the 


454  HEADINGS  IN  CIVIL  GOVERNMENT 

tax  rate  is  comparatively  simple.  To  the  appropriations  are 
added  the  amounts  prescribed  for  interest  on  loans,  for  sink- 
ing funds,  and  for  state  and  county  taxes.  From  the  total 
is  deducted  the  estimates  of  revenue  from  property,  fran- 
chises, industrial  undertakings,  licenses,  fees  and  state 
grants.  The  balance  is  compared  with  the  assessed  valuation 
of  taxable  property  for  the  city  as  determined  by  the 
assessors,  and  the  rate  necessary  to  yield  the  desired  revenue 
is  calculated. 

The  assessors  have  two  functions  to  perform:  the  valua- 
tion of  the  property,  and  the  assessment  of  the  tax  to  each 
property  owner  at  the  determined  rate.  The  valuations  of 
property  are  commonly  supposed  to  be  made  each  year;  but 
in  large  cities  it  is  impossible  for  assessors  to  visit  and 
inspect  even  all  the  real  estate  every  year,  and  valuations 
usually  stand  for  several  years  unless  there  is  some  marked 
improvement.  Personalty  assessments  are  made  largely  by 
guesswork.  The  general  rule  of  law  is  that  personalty  must 
be  assessed  at  the  domicile  of  the  owner;  but  some  forms  of 
tangible  personalty  may  be  assessed  at  its  situs,  and  the 
confusion  of  the  law  on  this  point  gives  rise  to  double  assess- 
ments. Moreover,  owners  of  personalty  are  allowed  to 
"swear  off"  their  assessments  in  bulk  in  many  states. 
There  is,  however,  very  little  opportunity  for  judicial  re- 
view of  the  individual  assessments. 

The  valuations  and  tax  assessments  being  made,  the  tax 
books  are  handed  to  the  collector  or  receiver  of  taxes,  who 
receives  the  payments  from  the  taxpayers  and  turns  the 
revenue  over  to  the  city  treasurer.  The  amount  received 
varies  considerably  from  the  total  amount  of  the  assessment. 
Small  rebates  are  usually  allowed  for  prompt  payment, 
interest  is  charged  on  delayed  payments,  while  there  is 
always  a  number  of  delinquent  taxpayers,  whose  taxes  must 
be  collected  by  special  processes. 

The  financial  bookkeeping  and  auditing  of  accounts  in  all 
important  American  cities  is  carried  out  under  the  discre- 
tion of  a  comptroller,  auditor,  or  controller,  who  is,  in  most 


GOVERNMENT  FINANCE  455 

cases,  an  elective  officer.  In  Cleveland,  Chicago,  and 
Detroit,  however,  the  official  whose  functions  correspond  to 
those  of  the  comptroller  is  appointed  by  the  mayor.  The 
duties  of  the  comptroller  in  most  cases  include  other  func- 
tions than  that  of  auditing  accounts.  Generally  he  has 
some  supervision  over  the  entire  financial  administration, 
while  in  cities  where  the  board  of  estimate  system  has  been 
adopted  he  has  a  large  influence  over  the  budget.  In  New 
York  the  comptroller  is  the  head  of  the  finance  department, 
and  the  chamberlain  (treasurer)  is  simply  the  chief  of  a 
bureau  in  that  department;  more  generally,  however,  the 
treasurer  is  a  co-ordinate  official  to  the  comptroller. 

As  auditing  authority  the  comptroller's  office  examines 
and  approves  (or  disapproves)  all  claims  against  the  city; 
and  payments  are  made  by  the  treasurer  only  on  warrants 
of  the  comptroller.  This  auditing  system  is  in  addition  to 
the  preliminary  examination  and  approval  of  bills  by  the 
department  concerned.  In  addition  to  the  checking  of 
accounts,  the  comptroller's  bureau  often  does  a  large  amount 
of  inspection  of  work  and  supplies.  On  the  other  hand,  the 
comptroller's  audit  and  inspection  does  not  always  include 
the  whole  field  of  municipal  expenditure.  School  boards 
very  often  have  an  independent  audit,  and  in  some  cases 
police  and  other  boards  conduct  the  audit  of  their  own 
accounts. 

The  methods  of  keeping  accounts  in  the  different  cities 
show  the  extreme  of  variety,  and  the  total  lack  of  anything 
like  a  general  system.  To  a  certain  extent  local  differences 
require  variations  in  the  methods  of  municipal  bookkeeping, 
especially  for  certain  special  and  trust  funds.  But  in 
America  the  variations  go  far  beyond  those  made  necessary. 
This  lack  of  uniformity  in  accounting  is  one  of  the  most 
serious  obstacles  in  the  way  of  a  comparative  study  of 
municipal  finances;  while  in  most  cases  the  reports  of 
municipal  comptrollers  are  in  such  a  confused  condition  that 
even  one  well  acquainted  with  the  local  conditions  finds  it 
difficult,  if  not  impossible,  to  understand  the  financial  situa- 


456  READINGS  IN  CIVIL  GOVERNMENT 

tion.  In  the  Statistics  of  Cities  prepared  by  the  Depart- 
ment of  Labor,  an  attempt  is  made  to  present  the  most 
important  items  for  the  cities  of  over  30,000  population.  The 
figures  given  are  determined  after  investigations  by  the 
agents  of  the  department  in  the  comptroller's  books,  and 
are  presented  in  a  much  more  intelligible  fashion  than  in 
most  municipal  reports;  but  with  the  limited  means  at  their 
disposal,  and  the  fundamental  absence  of  any  general 
system  in  keeping  accounts,  there  must  remain  considerable 
doubt  as  to  the  accuracy  of  the  comparisons. 

86.   MUNICIPAL,  FRANCHISES. 

One  of  the  most  difficult  problems  with  which  the  cities  of  the 
United  States  are  confronted  is  the  proper  management  of  their 
public  utilities.  And  at  the  very  heart  of  this  problem  is  the  ques- 
tion as  to  the  policy  of  the  city  in  regard  to  granting  franchises. 
Shall  they  be  given  away,  sold  outright,  granted  for  a  short  term 
of  years,  taxed,  or  exempted?  Upon  the  proper  solution  of  these 
questions  depends  to  a  large  degree  the  happiness  and  welfare  of 
the  people.  In  the  following  selection  Professor  D.  F.  Wilcox  dis- 
cusses these  questions : * 

It  is  now  well  known  that  the  franchises  of  a  great  city, 
under  the  conditions  ordinarily  imposed,  are  of  enormous 
value.  A  franchise  has  value  only  in  so  far  as  it  partakes 
of  the  nature  of  a  monopoly  in  practical  operation.  Unless 
the  monopoly  element  enters  in  some  degree,  the  franchise 
is  a  mere  license  or  permit. 

The  movement  for  the  taxation  of  franchises  as  real 
estate  has  gained  considerable  headway  since  it  was  put  into 
practical  operation  in  New  York  a  few  years  ago.  A 
franchise  is  undoubtedly  a  right  to  the  use  of  land  and 
should  be  classed  along  with  landed  property  strictly.  The 
taxation  of  franchises  is  in  no  sense  a  compensation  for 
them.  It  is  simply  the  taxation  of  a  certain  amount  of  very 
real  property  that  is  in  private  hands.  Nevertheless,  in 

i  Reprinted  from  Wilcox,  D.  F.,  The  American  City,  by  permission 
of  MacMillan  and  Company. 


GOVERNMENT  FINANCE  457 

bringing  this  class  of  property  upon  the  tax  rolls,  when  up 
to  this  time  it  has  been  as  clearly  and  universally  exempt 
as  United  States  bonds,  we  take  out  of  its  value  a  sum 
equal  to  the  amount  of  taxes  annually  paid  capitalized  at 
the  normal  rate  of  interest.  For  example,  supposing  that 
the  city  of  Gasopolis  twenty  years  ago  gave  to  a  company  the 
,  right  to  use  the  streets  for  the  purpose  of  distributing  gas 
to  be  sold  at  a  maximum  price  of  $1.00  per  1,000  cubic 
feet,  the  franchise  to  continue  for  forty  years,  subject  to 
such  regulations  and  conditions  as  may  have  been  imposed 
when  the  charter  was  granted.  Now  suppose  that  the  com- 
pany invested  $100,000  in  the  construction  of  its  gas-plant 
and  distributing  system,  and  is  now  able  to  pay  a  normal 
dividend  upon  $200,000  worth  of  stock.  We  should  say 
that  the  franchise  of  the  company  under  the  existing  condi- 
tions is  worth  $100,000.  If  we  have  been  taxing  only  visible 
property,  we  have  the  gas  company  assessed  for  $100,000 
only.  That  has  been  the  condition  under  which  the  fran- 
chise was  worth  the  other  $100,000.  If  now  we  begin  to 
tax  the  franchise  as  real  estate,  and  put  the  whole  $200,000 
upon  the  tax  rolls,  we  have  taken  away  a  certain  amount 
from  the  value  of  the  property.  If  the  tax  rate  is  2  per 
cent.,  for  example,  the  amount  of  taxes  received  on  account 
of  the  franchise  will  be  $2,000,  and  the  franchise  itself  will 
be  worth  $2,000  per  year  less  to  its  owners.  If  the  normal 
rate  of  interest  is  5  per  cent.,  then  the  value  of  the  fran- 
chise will  have  been  diminished  $40,000,  which  is  $2,000 
capitalized  at  5  per  cent.  By  bringing  the  franchise 
under  the  tax  law,  the  government  will  thus  confiscate  40 
per  cent,  of  the  value  of  the  franchise.  Yet  this  is  confis- 
cation only  in  the  same  sense  that  any  new  tax  involves 
confiscation.  Nevertheless,  in  this  hypothetical  case  we 
should  have  the  gas  company  assessed  at  $200,000  when  its 
property,  under  the  new  condition  involved  in  the  taxation 
of  the  franchise  at  its  previous  value,  has  been  reduced  in 
value  to  $160,000.  Under  the  circumstances,  therefore,  the 
franchise  should  be  assessed  at  less  than  its  previous  value. 


458  HEADINGS  IN  CIVIL  GOVERNMENT 

If  assessed  at  $71,428.57,  its  value  will  be  brought  down 
to  exactly  that  amount,  and  the  tax  will  be  just. 

We  must  not  be  deluded,  however,  by  the  idea  that  by 
taxing  a  franchise  we  receive  compensation  for  it.  It 
would  be  absurd  to>say  that  a  grant  of  land  by  the  govern- 
ment is  not  a  gift,  because  the  land  is  taxed  at  its  full  valua- 
tion after  it  becomes  private  property.  If  I  sell  my  neigh- 
bor a  house,  he  is  not  relieved  from  paying  taxes  because  he 
bought  the  house.  True,  one  of  the  conditions  that  fixed  the 
price  of  the  house  was  the  general  fact  of  its  being 
property  subject  to  taxation.  And  so  if  the  city  sells  me  a 
franchise  and  I  pay  full  value  for  it  under  the  condition  that 
it  shall  be  exempt  from  taxation,  then  if  later  the  city  taxes 
the  franchise,  in  justice  it  should  return  to  me,  not  the 
whole  amount  I  paid  for  my  special  privilege,  but  just  the 
difference  in  value  between  the  franchise  taxed  and  the  fran- 
chise not  taxed. 

The  only  possible  excuse  for  giving  away  any  franchise  is 
the  desire  to  " build  up  the  country,"  to  encourage  the 
development  of  property  for  the  benefit  of  the  community 
and  as  a  basis  for  future  taxation.  Upon  this  theory  fran- 
chises were  given  away  in  the  earlier  history  of  most 
American  cities.  Indeed,  new  franchises  are  still  given  away 
on  that  theory  in  many  cases,  especially  where  the  grant 
is  made  for  the  development  of  a  new  kind  of  public  utility 
such  as  the  distribution  of  heat  and  cold.  This  is  precisely 
the  same  theory  on  which  the  United  States  has  given  away 
lands  of  great  potential  value  to  actual  settlers. 

But  for  any  city  of  considerable  size  now  to  give  away  a 
street  railway,  gas,  or  electric  light,  water,  or  telephone 
franchise  on  the  same  conditions  under  which  similar  fran- 
chises now  have  an  immediate  and  real  market  value  is,  unless 
to  be  regarded  as  charity,  a  rank  injustice,  a  governmental 
iniquity — for  what  else  is  it  to  give  to  one  the  property  of 
all?  And,  indeed,  to  sell  a  franchise  on  condition  that  it 
shall  be  exempt  from  taxation  is  a  ruinous  mortgaging  of 
the  future.  For  example,  if  the  city  of  Gasopolis  now  sells 


GOVERNMENT  FINANCE  459 

a  twenty-year  franchise  under  condition  of  exemption  from 
taxation,  it  will  receive  $100,000  in  cash,  which  may  be  im- 
mediately devoted  to  some  permanent  public  improvement 
requiring  the  expenditure  of  that  amount.  If,  on  the  other 
hand,  the  franchise  is  sold  subject  to  taxation,  the  city 
will  receive  only  $71,428.57  down  and  will  have  to  borrow 
the  remaining  $28,571.43  needed  for  the  desired  improvement. 
If  the  city  pays  S1/^  per  cent,  interest  on  this  sum,  it  will 
amount  to  exactly  $1,000  per  year.  On  the  other  hand,  the 
city  will  be  receiving  2  per  cent,  in  taxes  on  $71,428.57,  which 
is  the  value  of  the  franchise.  This  will  amount  to  $1,428.57 
per  year,  so  that  the  city  will  be  the  gainer  by  $428.57 
annually.  .  .  . 

As  I  have  said,  the  value  of  a  franchise  depends  on  the 
monopoly  element  in  it.  This  may  be  expressed  in  the  grant 
or  may  be  simply  the  result  of  conditions  which  discourage 
or  prevent  competition.  In  the  nature  of  the  case  a  franchise 
for  the  establishment  of  a  continuous  line  of  fixtures  in  the 
street  tends  toward  monopoly.  It  is  open  for  a  city  to 
adopt  one  of  two  courses  toward  these  privileges.  First, 
the  city  may  cultivate  the  monopoly  features  in  order  to 
raise  a  revenue  from  them.  Or,  second,  the  city  by  regula- 
tion may  hold  down  prices  or  hold  up  the  service  to  the 
point  where  the  monopoly  principle  loses  its  venom,  and  the 
franchise  has  no  value.  Usually  this  question  resolves 
itself  into  the  question  of  a  percentage  of  gross  receipts  for 
the  city  treasury  or  lower  fares  for  the  street-car  passengers, 
lower  tolls  for  the  telephone  patrons,  or  lower  prices  for 
the  gas,  water  and  electric  light  and  power  consumers. 
There  is  comparatively  little  clear  thinking  on  this  question 
in  American  cities,  and  every  man  answers  it  according  to 
his  instincts.  If  he  is  a  large  property  owner,  he  is  anxious 
to  relieve  himself  of  a  portion  of  the  burden  of  direct  taxa- 
tion and  favors  selling  franchise-monopolies  so  as  to  replenish 
the  public  treasury.  If,  on  the  other  hand,  he  is  poor  or  in 
very  moderate  circumstances,  so  that  his  street-car  fare,  his 
water  rate,  and  his  gas  bill  are  a  burden  to  him,  he  wants 


460  READINGS  IN  CIVIL  GOVERNMENT 

prices  reduced  so  that  he  can  get  transportation,  water,  and 
light  at  cost.  It  is  generally  agreed  that  a  consumption  tax 
on  the  common  necessities  of  life  operates  as  a  special  burden 
upon  the  poor,  and  is  therefore  unjust  and  undemocratic. 
On  this  theory,  then,  democracy  will  insist  that  franchises 
for  the  supply  of  the  common  necessities  of  urban  life  must 
have  their  value  regulated  out  of  them  in  the  interest  of 
cheaper  and  better  service.  It  is  not  inconsistent  with  this 
theory,  however,  to  leave  enough  value  in  franchises  to  pay 
all  the  expenses  incidental  to  their  exercise.  That  is  to  say 
it  may  be  proper  to  require  street-railway  companies  to  pay 
into  the  public  treasury,  in  addition  to  any  tax  that  may  be 
levied  on  their  property,  a  sum  sufficient  to  reimburse  the 
city  for  all  extra  expense  in  the  construction  and  care  of 
streets  caused  by  the  presence  and  activities  of  the  street- 
railway  business.  The  taxpayer  has  no  claim  to  relief  by 
means  of  the  profits  of  public  utilities  except  in  so  far  as  he 
furnished  a  street  specially  prepared  for  their  fixtures.  It 
is  the  user  that  makes  a  public  utility  profitable,  and  con- 
sequently he  should  get  the  benefit.  .  .  . 

One  method  of  receiving  compensation  for  franchises,  now 
often  advocated,  is  by  the  provision  in  the  grant  that  the 
grantees'  plant  and  property  in  the  streets  shall  fall  to  the 
city  without  compensation  at  the  expiration  of  the  fran- 
chise period.  Such  an  arrangement  for  franchise  grants  is 
now  optional  with  New  York,  Chicago,  San  Francisco,  and 
some  other  cities  in  different  parts  of  the  country. 

Some  of  the  provisions  of  the  newer  charters,  especially 
those  of  western  cities,  are  interesting  and  instructive.  St. 
Paul  and  Portland,  Oregon,  represent  two  distinct  policies 
with  reference  to  public  utilities.  St.  Paul  does  not  permit 
municipal  ownership  of  street  railways  or  commercial  light- 
ing plants.  Nevertheless,  close  restrictions  are  put  upon  the 
grant  of  franchises.  They  require  a  three-fourths  vote  of  all 
the  members  of  each  branch  of  the  city  council,  and  if  vetoed 
by  the  mayor,  they  must  receive  a  four-fifths  vote  for  repas- 
sage.  Every  franchise  must  provide  for  the  payment  of  at 


GOVERNMENT  FINANCE  461 

least  5  per  cent,  of  the  gross  receipts  into  the  city  treasury. 
No  exclusive  franchises  can  be  granted,  and  no  franchise  at 
all  granted  for  more  than  a  twenty-five-year  period.  Every 
franchise-holder  is  required  to  make  an  annual  report  to 
the  city  comptroller,  showing  in  detail  the  financial  statistics 
of  his  business  for  the  preceding  year.  The  council  is  for- 
bidden to  grant  any  extensions  of  any  kind  to  existing  fran- 
chise companies  except  on  their  written  agreement  to  exercise 
their  present  franchises  under  all  the  terms  and  conditions 
of  the  charter,  including  the  payment  of  the  percentage  of 
gross  receipts. 

The  Portland  charter  grants  to  the  city  complete  authority 
to  own  and  operate  public  utilities.  If  franchises  are 
granted,  the  power  to  tax  them  like  other  property  cannot  be 
bargained  away.  Grantees  may  be  required  to  pay  a  per- 
centage of  gross  receipts  in  addition  to  all  other  forms  of  com- 
pensation, and  must  in  all  cases  make  financial  reports  to  the 
city  auditor  according  to  forms  prescribed  by  him.  When- 
ever a  franchise  is  applied  for,  the  executive  board,  which  I 
have  described  in  a  preceding  chapter,  is  required  to  make 
an  estimate  of  the  value  of  the  franchise  on  the  basis  of 
either  a  cash  payment  or  an  annual  percentage  of  gross 
receipts. 

A  recent  act  of  California,  applying  to  all  cities  which 
have  not  covered  the  same  subject  by  home-rule  charters, 
requires  that  when  a  franchise  is  petitioned  for,  the  city 
council  shall  advertise  for  bids  on  the  basis  of  a  payment 
of  2  per  cent,  of  the  gross  receipts  after  the  first  five  years. 
When  the  bids  are  opened,  any  responsible  party  may  raise 
the  highest  bid  by  not  less  than  10  per  cent.,  and  this  bid 
may  be  raised  in  like  manner.  The  franchise  goes  to  the  high- 
est bidder  who  is  able  to  establish  his  good  faith  by  prompt 
payment  of  the  price  offered.  All  these  western  laws  are  of 
too  recent  origin  to  have  been  tested  very  fully  in  their 
practical  workings. 

Provisions  for  the  sale  of  franchises  are  not  confined  to 
the  home-rule  charters  of  western  cities.  Even  New  York, 


462  READINGS  IN  CIVIL  GOVERNMENT 

the  mother  of  American  municipal  improvidence  and  the 
ancient  exemplar  of  the  "piracy  of  public  franchises/'  has 
at  last  got  a  charter  that  protects  in  some  fashion  the 
remnant  of  public  privileges  still  within  the  city's  gift.  The 
most  common  form  of  payment  for  street-railway  franchises 
has  been  hitherto  the  assumption  by  the  franchise-holders  of 
certain  special  duties  in  the  care  of  the  streets.  Baltimore 
was  the  wisest  of  all  our  great  cities  when  the  street  railways 
came  in,  and  required  them  to  assume  paving  burdens  that 
have  amounted  to  millions  of  dollars.  Philadelphia  has  also 
received  a  small  part  of  the  value  of  her  franchises  in  street 
improvements  made  or  paid  for  by  the  street  railroads. 
This,  however,  is  the  old  form  of  compensation  which  does 
not  appear  in  immediate  expenditure  and  does  not  satisfy 
the  demand  of  the  people  nowadays  for  a  cash  payment  into 
the  city  treasury  in  return  for  a  valuable  privilege.  There 
is  nothing  especially  wrong  with  the  paving  ta*,  provided 
that  the  street  railways  pay  in  cash  the  extra  cost  to  the  city 
of  paving  between  and  near  the  tracks.  This  ought  to  be 
reckoned  as  a  part  of  the  cost  of  the  business.  The  trouble 
comes  where,  as  in  Philadelphia,  the  franchise  companies 
assume  indefinite  burdens,  and,  instead  of  paying  the  city  for 
the  paving  work,  do  it  themselves.  Then  the  city  does  not 
know  what  it  is  getting  for  its  franchises. 

This  question  of  whether  franchises  should  be  sold  or  made 
valueless  by  regulation  is  closely  allied  to  the  question  of 
policy  in  relation  to  public  industries  as  revenue  producers. 
It  makes  no  difference  in  the  principle  whether  the  franchise 
is  sold  by  the  city  or  is  operated  for  profit  by  the  city. 
Municipal  ownership  and  operation  of  all  franchises  is  often 
held  up  as  a  possible  and  proper  source  of  large  net  revenues 
to  the  city.  If  the  theory  suggested  in  a  preceding  paragraph 
is  correct,  then  this  idea  of  making  public  industries  a  source 
of  net  revenue  to  help  pay  the  cost  of  the  general  functions 
of  government  is  all  wrong.  Public  utilities  are  undertaken 
by  the  city  usually  because  they  are  matters  of  common 
necessity,  and  should  be  distributed  to  the  people  as  cheap  as 


GOVERNMENT  FINANCE  463 

possible.  The  transportation  system  of  a  city  ought  not  to  be 
operated  on  the  principles  of  the  "hold  up"  by  our  taking 
advantage  of  the  necessities  of  travel  to  levy  tribute  upon  the 
people.  It  ought  rather  to  be  conducted  on  broad  principles 
with  a  view  to  performing  the  greatest  possible  social  service 
within  the  limits  of  self -sustenance.  If  this  policy  were  fol- 
lowed, an  equilibrium  between  the  tendency  to  lower  fares 
and  the  demand  for  better  service  would  be  maintained  at  a 
point  where  the  system  would  be  fully  self-sustaining  and  no 
more.  The  same  should  be  true  of  municipal  waterworks  and 
lighting  plants. 

ADDITIONAL  READINGS 

1 — Local  Finance,  Fairlie,  J.  A.,  Local  Government,  249-63. 

2 — Financial  Administration  of  the  City,  Goodnow,  F.  J.,  City 
Government  in  the  United  States,  286-301. 

3— The  Revenues  of  the  City,  Howe,  F.  C.,  The  City  the  Hope 
of  Democracy,  262-79. 

4 — State  Finance,  Bryce,  J.,  American  Commonwealth,  I, 
512-27. 

5 — Biography  of  a  River  and  Harbor  Bill,  Hart,  A.  B.,  Prac- 
tical Essays  in  American  Government,  206-32. 

6 — The  Growth  of  Federal  Expenditure,  Bullock,  C.  J.,  Politi- 
cal Science  Quarterly,  XVIII,  97-111. 


CHAPTER  XX 
CUERENCY  AND  BANKING 

87.   THE  RELATION  OP  THE  UNITED  STATES  TREASURY  TO  GENERAL 

FINANCE. 

• 

Since  1840  the  United  States  Treasury  has  been  conducted  inde- 
pendently of  the  banks.  That  is,  the  government  maintains  a  sys- 
tem of  treasury  vaults  in  which  the  government  balances  are  kept 
instead  of  being  deposited  in  banks.  This  system,  known  as  the 
Independent  Treasury,  though  devised  prior  to  the  establishment  of 
our  present  National  Banks  has  been  maintained  ever  jinee.  In  the 
following  article  Mr.  Lyman  Gage,  formerly  Secretary  of  the  Treas- 
ury, points  out  the  illogical  position  the  government  has  thus  as- 
sumed by  maintaining  a  treasury  independently  of  its  own  system 
of  banks:  [1908]. 

The  United  States  Treasury  in  its  relation  to  the  banking 
and  financial  interests  of  the  country  has  occupied,  since  the 
creation  of  the  national  banking  system,  to  go  back  no 
farther,  an  illogical  not  to  say  an  unjustifiable  position.  By 
the  National  Banking  Act,  with  its  several  amendments, 
the  Government  became  sponsor  for  banking  institutions  now 
numbering  more  than  6,500.  The  rights,  duties,  qualifica- 
tions and  responsibilities  attached  by  law  to  all  these  institu- 
tions were  fixed  by  the  Government  itself.  Having  brought 
these  agencies  into  being,  it  virtually  declared  to  the  citizens 
of  the  land:  " These  are  worthy  agencies,  and  they  deserve 
your  confidence.  For  the  faithful  performance  of  the  duties 
imposed  upon  them,  and  in  the  interest  of  your  safety,  we, 
the  Government,  will  maintain  over  them  a  watchful  and 
detailed  supervision,  disciplining  those  unfaithful  to  duty, 
while  we  will  peremptorily  suspend  the  power  of  any  who 

464 


CURRENCY  AND  BANKING  465 

shall  prove  unfit."  Clothed  with  those  high  warrants  and 
sanctions,  the  national  banks  as  a  whole  have  made  successful 
appeal  to  the  business  world ;  and  these  institutions  now  taken 
together  are  under  money  obligations  to  the  people  for  a  sum 
in  excess  of  four  thousand  millions  of  dollars. 

What  has  been  the  practical  attitude  of  the  Government,  as 
expressed  through  its  Treasury  and  fiscal  department,  to  the 
banking  agencies  it  has  thus  endowed  with  life  ?  It  can  be 
set  forth  in  a  single  paragraph.  Never  has  the  Government 
itself  intrusted  its  financial  interests  to  the  safe-keeping  of 
the  agencies  it  has  held  out  to  the  people  as  worthy  of  their 
respect  and  confidence.  It  has,  indeed,  on  several  and  divers 
occasions,  taken  moneys  from  the  Treasury  hoard,  and,  under 
peculiarly  exacting  conditions,  it  has,  for  various  periods  of 
time,  deposited  a  portion  of  these  hoards  with  banking  institu- 
tions ;  but  it  has  in  no  way  conformed  to  the  general  method 
by  which  the  banking  agency  is  utilized  by  the  business  public. 
It  has,  in  fact,  persistently  refused  to  receive  from  that 
portion  of  the  public  from  which  it  derives  its  enormous 
revenues  those  instruments  of  credit,  known  as  "checks"  and 
"drafts,"  which  constitute  the  real  currency  of  commerce 
and  trade.  Separate,  distinct  and  aloof  from  the  ordinary 
financial  and  industrial  life  to  which,  through  its  revenues 
and  disbursements,  it  stands  closely  related,  it  is  persistent 
in  exacting  cash  in  hand  from  its  revenue  contributors ;  while, 
on  the  other  hand,  it  has  distributed  its  payments  in  actual 
funds  through  its  own  special  appointees. 

In  all  these  particulars,  it  has  been  as  if  the  banking 
agency  did  not  exist,  or,  if  existing,  as  if  it  were  unworthy  of 
Government  use.  The  excess  of  its  revenues,  when  excess 
there  has  been,  was  withdrawn  from  that  public  service  to 
which  through  the  banks  it  might  have  been  applied. 

This,  I  say,  was  illogical.  It  might,  indeed,  have  lain  in 
the  mouth  of  the  great  corporations— such  as  railroads,  the 
Standard  Oil  Company  and  other  enormous  handlers  of 
money  values— to  say  to  the  Government:  "Your  ingenious 
so-called  banking  system  does  not  commend  itself  to  our 
30 


466  EEADINGS  IN  CIVIL  GOVERNMENT 

respect  and  confidence.  We  believe  neither  in  the  people  with 
whom  we  deal,  nor  in  the  banks  you  have  created.  Our 
revenues,  however  derived,  must  come  to  us  in  actual  money. 
The  device  of  checks  and  drafts,  so  convenient  and  economical 
to  the  people  in  their  other  affairs,  does  not  appeal  to  us. 
Having  the  power  in  our  relation  to  do  so,  we  dictate  the  con- 
ditions. Our  money,  when  received,  we  will  lock  up;  and, 
in  the  natural  financial  intimacies  of  life,  we  will  stand 
separate,  apart  and  independent.  We  justify  this  action  on 
the  ground  that  your  banking  system  is  unsafe.  ' ' 

Now,  if  it  were  excusable  on  this  ground  for  these  great 
corporations  to  take  this  arbitrary  position — which  nobody 
will  affirm — it  were  inexcusable  for  the  Government  to  do  so, 
since  the  Government  itself  determined  and  decreed  all  the 
qualifications  for  safety  and  efficiency  which  its  own  creatures 
should  possess. 

Was  this  course  of  action  on  the  part  of  the  Government 
necessary  for  just  prudence  as  to  the  safety  of  its  funds,  or 
proper  economy  in  administration  of  its  affairs?  In  answer 
to  the  first  half  of  this  question,  I  affirm  it  to  be  the  fact, 
demonstrated  by  careful  and  thorough  examination,  that  had 
the  Government  employed  the  national  banks  in  centres 
known  as  the  "reserve  cities,"  depositing  with  them  its 
revenues,  with  some  just  proportion  to  or  regard  for  the  rela- 
tive capital  of  those  various  institutions,  with  no  security  from 
them  whatever  other  than  a  first  lien  upon  their  assets, 
respectively,  there  would  never  have  been  a  dollar  of  loss  to 
the  Government.  If,  on  the  other  hand,  the  Government  had 
required,  in  consideration  for  these  moneys  so  deposited,  an 
interest  return  by  the  banks  of,  say,  two  per  cent,  per 
annum,  the  Government  would  have  realized  from  this  source, 
up  to  the  present  time,  a  total  revenue  of  something  more 
than  $70,000,000. 

As  to  economy  of  administration  of  the  Treasury  funds, 
there  would  also  have  been  an  enormous  saving,  since  the 
elaborate  machinery  of  the  Sub-Treasury  and  Sub-Treasuries 


CURRENCY  AND  BANKING  467 

need  not  have  been  employed.  Nevertheless,  the  creator  has 
steadily  refused  to  employ  its  own  agencies,  while  the  rest  of 
the  business  world,  obedient  to  the  law  of  economic  advantage, 
has  employed  in  its  multifarious  affairs  the  useful  machine 
of  banking-credit  which  the  Government  has  thus  rejected. 
To  add  piquancy  to  this  contrast,  it  might  be  truthfully  said 
that  were  the  aforesaid  large  financial  corporations  to  aban- 
don their  present  methods  and  adopt  instead  the  example  of 
the  Government,  and  install,  each  for  itself,  an  ' '  independent 
treasury"  a  cry  of  indignant  protest  would  resound  through 
the  length  and  breadth  of  the  land — and  rightly  so,  unless  it 
be  that  our  modern  system  of  credit  and  credit  machinery 
for  the  transfer  of  property  and  payment  of  accounts,  etc., 
is  a  delusion  and  a  snare. 

If  the  credit  system  can  be  thus  characterized,  the  Govern- 
ment is,  no  doubt,  justified  in  maintaining  its  own  private 
purse  independent  of  all  things  else.  It  is  in  that  case 
equally  true  that  every  one  controlling  money  values  should 
adopt  the  same  rules.  In  short,  the  National  Banking  Act 
should  be  repealed.  We  are  not,  however,  ready  to  return  to 
a  method  closely  allied  to  primitive  barter.  Concede  this, 
and  then  the  Government  is  wrong — economically  and  logic- 
ally wrong — in  its  independent  Treasury.  The  disturbing 
influence  on  general  financial  affairs  of  excessive  money- 
hoarding  by  the  Government  has  been  too  often  described 
to  require  any  detailed  notice  here.  If,  then,  a  vote  were 
to  be  taken  among  those  who  have  capacity  to  judge  of  things 
in  their  true  relationships,  I  do  not  doubt  that  the  proposi- 
tion to  abolish  the  independent  Treasury  and  substitute  for 
it  the  use  of  banking  agencies  as  they  now  exist  would  receive 
a  preponderating  vote.  I  may  be  wrong  in  this  opinion.  I 
myself  would  hesitate,  however,  to  vote  in  the  affirmative  on 
that  proposition.  I  should  much  prefer  that  the  motion  be 
"laid  upon  the  table "  until  our  banking  system  can  be  so 
amended  that  it  shall  be  free,  or  comparatively  free,  from 
the  perturbations  which  periodically  beset  us,  bringing  in  as 


468  READINGS  IN  CIVIL  GOVERNMENT 

a  consequence  a  partial  or  complete  suspension  of  the  bank- 
ing  function  upon  which  society  depends  for  the  regular 
ongoing  of  its  business  affairs. 

I  need  hardly  say  that  the  amendments  to  which  I  refer 
must  be  in  the  line  of  unification  or  centralization  of  power. 
The  banking  units,  whose  weakness  as  they  now  exist  has  been 
so  often  demonstrated,  must  receive  strength  by  association 
together  or  with  some  superior  commanding  agency  able  both 
to  exercise  control  and  furnish  effective  support.  A  central 
bank  or  a  Government  bank  of  adequate  capital  properly 
organized  for  safety  and  efficiency  is  the  sort  of  an  agency 
to  which  I  refer.  Great  Britain,  France  and  Germany  offer 
good  models  which  we  may  profitably  study. 

I  would  maintain  the  independent  Treasury  until  such 
time  as  our  banking  system  is  so  re-enforced ;  because,  in  spite 
of  the  lack  of  logical  reasons  for  its  existence,  it  has  been, 
and  is  now,  in  our  imperfect  condition,  the  only  agency  which 
can,  or  theoretically  can,  regulate  and  give  to  some  extent  a 
degree  of  steadiness  to  the  erratic  movement  incidental  to  our 
financial  and  banking  system  as  now  operated. 

By  its  intervention,  the  Treasury  on  many  occasions  in  the 
past,  has  averted  threatened  financial  disaster.  Given  an 
always  plethoric  Treasury,  directed  by  an  infallibly  wise  ad- 
ministrator (one  who  has  never  yet  appeared),  it  could,  by 
timely  deposits  of  these  hoarded  moneys,  and  by  timely  with- 
drawals of  the  same,  in  part  or  in  whole,  give  steadiness  and 
regularity  where  otherwise  there  would  be  irregularity,  dis- 
location and  panic.  In  these  regards,  the  independent  Treas- 
ury, when  endowed  with  the  needful  power  in  money,  can, 
and  in  my  opinion  has,  to  a  degree  served  the  purpose  and 
discharged  in  a  crude  way  the  functions  of  a  great  Govern- 
ment or  central  bank.  This  service,  crude  as  it  has  been, 
often  entirely  lacking  through  want  of  power,  often  badly  di- 
rected through  lack  of  wisdom,  is  a  development  not  antici- 
pated nor  foreseen  in  the  laws  establishing  the  independent 
Treasury.  It  illustrates  an  old  truth  often  recognized  that 
even  out  of  evil  good  may  incidentally  come.  Be  the  service 


CURRENCY  AND  BANKING  469 

to  which  I  have  referred  worth  little  or  much,  it  cannot  safely 
be  counted  upon  as  a  valuable  factor  in  the  future.  The 
present  overflowing  Treasury,  through  changed  conditions, 
may,  at  no  distant  date,  be  in  a  state  of  exhaustion.  A  per- 
fect system  of  Government  finance  would,  indeed,  bring  in  each 
day  from  its  sources  of  revenue  a  sum  exactly  adequate  to 
meet  its  daily  expenditures.  We  ought  not,  then,  to  retain 
permanently  the  independent  Treasury  for  the  sake  of  its 
ambiguous  and  uncertain  control  as  an  intermediary  in  our 
financial  life,  with  which  it  should  by  right  interfere  to  the 
smallest  degree  possible. 

My  conclusion,  then,  is,  first,  that  the  independent  Treas- 
ury should  be  abolished  whenever  and  as  soon  as  our  present 
banking  system,  which  has  been  demonstrated  to  be  faulty, 
is  corrected  in  the  direction  I  have  pointed  out  rather  than 
described ;  second,  that  the  perfecting  of  our  banking  and  cur- 
rency system — so  that  it  may  at  all  times  perform  its  impor- 
tant function  in  a  safe  and  effective  manner  both  for  the  Gov- 
ernment and  for  all  the  people — is  an  end  demanding  the 
best  thought  and  the  most  intelligent  effort  of  financial  stu- 
dents and  political  economists,  and  of  all  patriotic  people  who 
desire  for  their  country  what  will  best  make  for  its  eco- 
nomic welfare. 

88.    THE    NATIONAL    BANKS   AND    THE   PANIC    OF    1907. 

Financial  crises  have  occurred  from  time  to  time  in  the  United 
States  with  almost  periodic  regularity.  Some  have  been  more  dis- 
astrous than  others.  But  whatever  the  character  of  the  causes  that 
produce  them  or  their  effect  upon  business  generally,  they  must  in 
the  very  nature  of  the  case  bear  an  especial  relation  to  the  banking 
system  of  the  country.  In  the  following  selection  Mr.  Wm.  B. 
Ridgely,  Comptroller  of  the  Currency,  shows  how  in  the  crisis  of 
1907  our  National  Banks  failed  to  meet  the  emergency:  [1908]. 

There  has  been  no  lack  of  warning  indications  of  financial 
troubles.  For  the  last  ten  or  twelve  years  there  has  been  an 
era  of  advancing  prices  and  of  great  industrial,  commercial 
and  speculative  activity,  in  all  countries  of  the  world.  Cred- 


470  READINGS  IN  CIVIL  GOVERNMENT 

its  were  increased  till  the  limit  was  reached  in  the  amount  of 
reserve  money  on  which  they  must  be  based.  For  two  or 
three  years,  it  has  been  constantly  more  evident  that  there 
must  be  a  slackening  of  the  pace  if  we  would  avoid  a  general 
crisis  in  commercial  affairs.  As  is  always  the  case,  when 
there  is  a  demand  for  liquidation,  it  first  manifests  itself  in 
the  stock-market.  For  months,  there  has  been  a  more  or  less 
steady  decline  in  quotations.  The  difficulty  in  selling  bonds 
became  so  great  that  many  of  the  railways  have  had  to  raise 
money  for  their  necessary  expenditures  through  short-time 
notes  instead  of  by  the  regular  bond  issues.  Merchants  and 
manufacturers  of  the  highest  credit  have  found  it  harder  and 
harder  to  renew  loans,  and  the  rates  have  risen,  steadily,  for 
months. 

It  was  under  such  conditions  that  we  approached  the  au- 
tumn crop-moving  period,  when  there  are  always  withdrawals 
of  balances  from  the  reserve  cities.  For  a  time,  there  was 
reason  to  hope  that  there  might  be  no  more  than  a  gradual 
liquidation  of  credits  which  would  not  develop  into  a  bank 
or  commercial  crisis.  But,  in  October,  the  collapse  of  a 
highly  speculative  corner  in  stocks  dealt  in  on  the  "curb"  in 
New  York — not  even  listed  on  any  regular  exchange — brought 
suspicion  upon  an  old  and  well-established  national  bank. 
Examination  showed  this  bank  to  be  entirely  solvent;  but 
public  interest  had  been  aroused  to  such  an  extent  that  runs 
developed  in  New  York  city  on  several  other  banks  and  trust 
companies.  Some  of  them  were  not  prepared  for  co-operation 
and  protection  against  the  sudden  demands,  and  a  number  of 
failures  followed. 

In  this  emergency  the  Clearing-house  banks  of  New  York 
issued  Clearing-house  certificates  for  use  in  the  payment  of 
balances,  and  decided  to  suspend  the  shipment  of  currency 
to  out-of-town  banks.  This  example  was  followed  by  the  cen- 
tral reserve  banks  and  most  of  the  other  reserve  cities,  of  ne- 
cessity precipitating  a  famine  of  currency  and  a  serious  bank 
crisis.  The  means  of  remittance  and  collection  were  almost 
entirely  suspended.  Individuals,  corporations  and  even  the 


CURRENCY  AND  BANKING  471 

banks  themselves  drew  and  held  all  the  money  of  any  kind 
they  could  obtain.  A  curious  feature  of  the  situation  was 
that  there  was  more  of  a  panic  among  the  banks  than  among 
the  people ;  but  the  hardship  was  to  business  generally.  Every 
class  of  business  was  interfered  with,  so  that  business  opera- 
tions of  every  kind  were  curtailed.  Factories  have  suspended, 
workmen  have  been  thrown  out  of  employment,  orders  have 
been  canceled,  the  moving  of  crops  has  been  retarded,  ex- 
ports have  fallen  off  at  a  time  of  the  year  when  they  should 
be  at  their  highest.  Another  serious  result  has  been  the  re- 
duction of  the  volume  of  foreign  credits  available  just  at  the 
time  when  they  are  most  needed  to  offset  the  large  imports  of 
gold  which  have  been  made. 

It  was  not  the  failure  of  a  few  banks  which  brought  on  the 
panic.  It  was  the  system  which  rendered  a  panic  practically 
inevitable  under  certain  conditions — and  they  are  conditions 
which  can  be  many  times  repeated.  It  was  not  lack  of  con- 
fidence on  the  part  of  the  people,  but  lack  of  confidence  in  the 
banks  themselves.  They  were  fearful  that  the  reserve  system 
would  break  down,  and  it  broke  down.  They  were  fearful 
that  a  sufficient  amount  of  currency  could  not  be  supplied  to 
meet  the  demands — -the  demands  were  all  made  at  once  and 
there  was  not  a  sufficient  amount  to  meet  them.  The  remedy 
lies  in  improving  the  reserve  system,  so  that  the  reserve  de- 
posits of  the  banks  shall  be  kept  where  they  are  always  and 
certainly  available,  and  in  imparting  to  our  currency  system 
an  element  of  elasticity,  so  that,  when  there  comes  a  sudden 
demand  for  bank-notes,  they  can  be  supplied  without  obliter- 
ating the  reserve.  This  can  only  be  satisfactorily  accom- 
plished through  the  establishment  by  the  Government  of  a 
central  bank  of  issue  and  reserve — the  system  which  is  work- 
ing so  satisfactorily  in  all  of  the  great  commercial  centres 
of  Europe.  It  would  not  only  solve  the  two  great  problems 
of  our  banking  system,  but  would  also  provide  the  machinery 
for  conducting  Treasury  operations  with  the  least  disturb- 
ance. 

The  real  weakness  of  our  present  banking  system  is  the 


472  READINGS  IN  CIVIL  GOVERNMENT 

result  of  the  provision  regarding  reserve  deposits,  through 
which  the  reserves  are  piled  up  in  central  reserve  cities,  with- 
out a  sufficient  amount  of  actual  cash  reserve  on  hand,  so  that 
when  an  emergency  arises  the  reserves  are  not  reserves  at  all. 
It  would  help  against  embarrassment  to  add  to  the  reserve 
required,  all  along  the  line;  but  the  proper  solution  is  to  in- 
crease the  amount  and  require  all  reserves  to  be  held  in  a  cen- 
tral bank  organized  for  that  purpose.  The  depositing  bank 
would  not  only  be  sure  that  the  funds  were  always  available, 
but  that,  as  long  as  it  was  solvent,  it  could  go  to  the  central 
bank  and  get  any  amount  of  cash  needed  on  notes  of  its  cus- 
tomers or  other  good  security.  With  such  a  bank  to  depend 
on,  no  solvent  bank  need  ever  doubt  its  ability  to  meet  all 
possible  demands. 

The  law  concerning  reserves,  as  it  stands,  requires  that  a 
minimum  reserve  of  twenty-five  per  cent,  on  deposits  be  held 
in  lawful  money  in  the  vaults  of  the  central  reserve  city 
banks.  The  reserve  cities  must  also  keep  twenty-five  per  cent, 
reserve,  one-half  of  which  may  be  on  deposit  in  the  central  re- 
serve banks.  Banks  in  all  other  cities  are  required  to  keep 
fifteen  per  cent.,  three-fifths  of  which  may  be  on  deposit  in 
reserve  or  central  reserve  cities.  With  any  lack  of  confidence, 
this  system  is  necessarily  a  source  of  weakness  instead  of 
strength.  Realizing  upon  what  small  margins  they  depend, 
each  bank  is,  in  self-defence,  impelled  not  only  to  collect  its 
loans,  but  to  withdraw  its  reserve  deposits.  Deposits  of  $10,- 
000,000,  in  country  or  non-reserve  banks,  call  for  a  cash  re- 
serve to  be  kept  in  those  banks  of  only  $600,000,  with  $900,- 
000  on  deposit  in  reserve  city  banks.  These  banks  must  have 
in  their  vaults  only  $112,500  of  the  amount,  with  the  same 
amount  on  deposit  in  central  reserve  cities,  where,  in  turn, 
there  need  be  on  hand  but  $28,125  representing  it  There  is, 
therefore,  but  $740,625  in  cash,  kept,  unloaned,  anywhere, 
against  this  deposit  of  $10,000,000  in  the  country  banks.  Of 
this  only  $140,625  is  outside  the  banks'  own  vaults.  If  there 
is  a  reduction  in  the  deposits  of  the  country  banks,  of  $150,- 
000,  out  of  the  ten  millions,  only  one  and  one-half  per  cent., 


CUEEENCY  AND  BANKING  473 

it  calls  for  more  cash  than  has  been  kept  on  hand  in  reserve 
banks  for  the  whole  ten  millions.  What  wonder  that  the 
fall  demand  for  $200,000,000  in  currency,  for  crop-moving, 
always  causes  anxiety,  and  that  when  it  is  accompanied  by 
a  withdrawal  of  deposits  and  curtailment  of  credits,  caused 
by  uneasiness  or  distrust,  the  banks  are  forced  to  drastic 
measures  in  self-defence. 

There  is  nothing  new  in  this  situation.  It  has  been  known 
to  all  students  of  our  banking  and  currency  system,  and  has 
been  written  and  talked  about  for  many  years.  It  has  pro- 
duced panic  after  panic,  and  a  stringency  in  the  money-mar- 
ket every  fall  for  forty  years.  It  was  wholly  due  to  this 
that  the  crisis  of  October  assumed  the  phase  of  a  bank  panic 
and  spread  over  the  country.  There  was  no  other  reason  at 
all  why  the  banks  as  a  whole  should  have  become  involved, 
and  their  business  and  that  of  all  of  their  customers  disturbed 
as  it  was.  All  that  was  needed  to  have  prevented  this  was  a 
proper  system  of  credit  bank-note  currency  and  bank  reserves, 
both  of  which  would  have  been  supplied  by  a  central  bank  of 
issue  and  reserve.  There  would  have  been  no  scarcity  of  cur- 
rency, no  derangement  of  domestic  exchange  and  no  panic 
among  the  banks  or  among  the  people. 

The  only  way  in  which  bank-deposit  credits  can  be  prop- 
erly protected  from  sudden  calls,  when  all  banks  may  be  in- 
volved at  the  same  time,  is  by  a  system  of  note  credits  which 
can  be  at  any  time  and  immediately  exchanged  for  deposit 
credits.  They  are  essentially  the  same  thing,  and  they  should 
be  daily,  hourly,  if  necessary,  convertible  from  one  to  the 
other.  With  such  a  system  there  is  no  inflation  or  expansion 
when  a  note  is  paid  out,  and  no  contraction  when  a  note  is  re- 
turned. It  makes  no  difference  to  the  bank  or  to  any  one 
but  the  customer,  who  uses  either  at  his  option,  whether  the 
deposit  remains  in  the  bank  as  a  credit  to  be  checked  against 
or  is  taken  away  in  the  shape  of  a  circulating  note. 

Our  bond-secured  bank-notes  offer  no  help  to  a  bank  in 
sudden  calls  for  deposits.  They  are  a  fixed  currency,  issued 
on  the  secured  currency  principle,  as  distinguished  from  the 


474  READINGS  IN  CIVIL  GOVERNMENT 

credit  or  banking  principle.  When  issued  they  stay  out  in- 
definitely, only  returning  to  be  renewed  \vlu-n  worn  out.  It 
is  only  when  the  bonds  for  security  can  be  borrowed  or  some 
Government  deposit  is  obtained  that  they  are  of  any  value  in 
meeting  an  emergency.  It  will  not  help  the  matter  to  in- 
crease the  volume  of  bonds.  It  would  only  increase  the  vol- 
ume of  rigid,  unelastic  notes.  They  would  only  be  a  power 
of  expansion  till  they  were  issued.  Then  they  would  stay 
out,  with  no  tendency  to  contraction  when  not  needed.  There 
would  be  no  temporary  expansion  possible  to  meet  the  sudden 
demands  of  an  emergency.  We  must  have  a  note  circulation 
which  can  change  quickly  and  automatically  in  response  to 
demands.  Contractibility  is  quite  as  necessary  as  expansi- 
bility. Several  of  the  panic  reliefs  which  have  at  various 
times  been  suggested  have  good  points.  They  would  serve 
a  purpose  in  quieting  a  panic  after  it  is  under  way,  but  not 
in  preventing  it.  The  use  of  Clearing-house  certificates  by 
the  banks  has  been  found  a  very  efficient  means  for  their  de- 
fence, and  on  many  occasions  has  probably  prevented  a  great 
number  of  bank  failures  during  panics.  But  they  are  only 
half-way  measures.  They  carry  us  no  farther  than  to  the 
inevitable  conclusion  that  we  should  have  a  national  and  cen- 
tral bank  of  issue  and  reserve.  Clearing-house  certificates, 
which  are  really  credit-notes  on  a  large  scale,  should  be  is- 
sued by  a  central  bank  under  Government  authority.  This 
would  have  none  of  the  disadvantages  of  the  other  system, 
while  it  would  have  all  of  the  advantages  and  many  more 
besides. 

The  real  need  is  for  something  that  will  prevent  panics, 
not  for  something  that  will  relieve  them;  and  the  only  way 
to  attain  this  is  through  the  agency  of  a  Governmental  bank. 
The  experience  of  all  other  countries  has  demonstrated  this. 
We  shall  surely  have  panic  after  panic  till  we  learn  the  plain 
lesson  which  the  others  have  learned  and  adopt  the  only  effi- 
cient, scientific  and  proper  means  to  protect  our  business  in- 
terests. It  is  a  matter  of  greater  importance  to  the  people  at 
large  than  it  is  to  the  banks  themselves.  The  banks  devise 


CURRENCY  AND  BANKING  475 

ways  and  means  to  stand  together,  with  the  aid  of  the  Clear- 
ing-house, and  by  suspension  or  partial  suspension  of  pay- 
ment to  bridge  over  and  avoid  failure.  But  the  other  busi- 
ness interests  of  the  country  are  left  almost  in  a  state  of 
chaos.  The  machinery  of  domestic  exchange  suddenly  stops. 
Collections  and  remittances  are  almost  impossible.  Manufac- 
turers are  forced  to  suspend.  Workmen  are  thrown  out  of 
employment.  Business  men  are  forced  to  fail  through  no 
fault  of  their  own,  There  is  no  citizen  of  the  United  States 
who  is  not  in  danger  of  more  or  less  loss  and  embarrassment. 
And  worst  of  all  is  the  long  period  of  depression  which  fol- 
lows a  panic,  bringing  suffering  and  privation  to  those  who 
are  in  no  way  to  blame.  The  thing  which  is  absolutely  essen- 
tial is  a  banking  system  with  bank-notes  which  will  be  re- 
sponsive to  the  demands  of  business  and  will  as  readily  con- 
tract as  expand;  with  a  system  of  bank  reserves  which  shall 
be  real  reserves  and  always  immediately  available. 

89.  THE  FEDERAL  RESERVE  BANK  SYSTEM. 

In  1913  Congress  created  a  new  system  of  banks  which  was 
expected  to  correct  the  defects  complained  of  in  the  preceding 
numbers.  In  the  following  article  Professor  E.  E.  Agger  explains 
the  principal  provisions  of  this  law:  (1914) 

The  factor  most  largely  responsible  for  the  peculiar  or- 
ganization of  the  new  system  was  the  desire  for  the  centraliza- 
tion of  reserves.  The  plan  adopted  involves  no  absolute  cen- 
tralization of  reserves,  but,  rather,  a  district  centralization 
with  the  possibility  of  effecting  virtually  complete  centraliza- 
tion should  the  necessity  therefor  arise. 

The  holders  of  the  centralized  reserves  are  to  be  banks  spe- 
cially created  for  the  purpose  and  known  as  Federal  Reserve 
Banks.  The  law  provides  for  from  eight  to  twelve  "  federal 
reserve  districts, ' ?  in  each  of  which  is  to  be  designated  a  ' '  fed- 
eral reserve  city,"  in  which  the  new  banks  are  to  be  estab- 
lished. Each  federal  reserve  bank  may  establish  branches  in 
other  places  in  its  own  district,  and  also  in  other  districts 


476  READINGS  IN  CIVIL  GOVERNMENT 

should  the  reserve  banks  of  such  other  districts  be  for  any 
reason  suspended. 

Federal  reserve  banks  are  to  be  the  banks  of  bankers.  They 
must  have  a  minimum  capital  of  $4,000,000,  which  is  to  be 
subscribed  in  each  district  by  the  banks  joining  the  system,  al- 
though if  the  required  capital  cannot  be  obtained  in  that  way, 
it  is  to  be  made  up  by  public  or  governmental  subscription. 
Membership  is  voluntary,  and  is  open  to  state  banks  and  trust 
companies  as  well  as  to  national  banks. 

As  the  federal  reserve  banks  are  primarily  public  rather 
than  profit-making  agencies,  their  annual  dividends  are  lim- 
ited to  six  per  cent,  per  annum.  Any  excess  above  six  per 
cent,  is  to  go,  half  to  the  surplus  and  half  to  the  government, 
until  the  surplus  reaches  forty  per  cent.,  when  the  entire  ex- 
cess is  to  accrue  to  the  government.  The  amount  so  accruing 
to  the  government  is  to  be  used  at  the  discretion  of  the  sec- 
retary of  the  treasury,  to  strengthen  the  gold  reserve  behind 
the  "greenbacks"  or  to  retire  outstanding  United  States 
bonds.  In  case  of  liquidation,  whatever  is  left  of  the  surplus 
after  deducting  items  justly  chargeable  against  it  goes  to  the 
government.  The  dividends  to  the  shareholders  of  the  reserve 
banks  are,  however,  cumulative. 

Co-ordinating  and  controlling  the  whole  system  is  the  * '  Fed- 
eral Reserve  Board."  It  is  made  up  of  seven  members.  The 
secretary  of  the  treasury  and  the  comptroller  of  the  currency 
are  members  ex  officio.  Five  members  are  appointed  by  the 
President,  by  and  with  the  advice  and  consent  of  the  Senate. 
Not  more  than  one  member  of  the  board  can  come  from  a  single 
federal  reserve  district.  At  least  two  of  the  Presidential  ap- 
pointees must  have  had  banking  or  financial  experience,  but  no 
member  of  the  board  may  be  an  officer,  director,  or  stock- 
holder of  any  bank.  Except  for  the  ex  officio  members,  and 
for  the  first  incumbents,  whose  terms  will  run  respectively  two, 
four,  six,  eight  and  ten  years,  the  term  of  office  will  be  ten 
years.  But  the  President  may  remove  members  for  cause. 
While  the  secretary  of  the  treasury  is  the  ex  officio  chairman 
of  the  board,  the  President  is  empowered  to  name  one  of  his 


CURRENCY  AND  BANKING  477 

five  appointees  as  ''governor"  and  another  as  " vice-gov- 
ernor/' The  governor  and  vice-governor  are  the  chief  execu- 
tive officers  of  the  whole  system. 

The  federal  reserve  board  is  an  unusually  powerful  super- 
visory and  regulating  body.  It  may  suspend  or  remove  any 
officer  or  director  of  a  federal  reserve  bank;  it  may  require 
the  writing  off  by  such  bank  of  its  bad  debts;  and  may  sus- 
pend a  federal  reserve  bank  or  take  it  over  for  purposes  of 
reorganization  or  liquidation.  It  may  also  readjust  or  abolish 
altogether  the  classification  of  central  and  reserve  cities. 

The  member  banks  are  represented  in  the  central  manage- 
ment by  a  " Federal  Advisory  Council,"  made  up  of  one  rep- 
resentative from  each  federal  reserve  district,  chosen  by  the 
board  of  directors  of  the  federal  reserve  bank.  This  council 
meets  quarterly  at  Washington  and  at  such  other  times  and 
places  as  it  may  choose. 

To  effect  the  desired  centralization  of  reserves  the  federal 
reserve  banks  are  authorized  to  receive  deposits  from  mem- 
ber banks,  from  the  United  States  government,  and,  solely  for 
exchange  purposes,  from  each  other.  Deposits  from  private 
individuals  may  not  be  accepted.  The  secretary  of  the  treas- 
ury is  authorized  to  use  his  discretion  in  employing  the  fed- 
eral reserve  banks  as  depositories  for  government  funds.  In 
view  of  the  evils  disclosed  by  the  independent  treasury  sys- 
tem in  the  past,  it  is  hardly  conceivable  that  he  will  fail  so  to 
employ  them  when  once  the  system  is  well  established.  Mem- 
ber banks,  on  the  other  hand,  are  required  to  keep  a  consider- 
able proportion  of  their  lawful  reserves  on  deposit  in  the  fed- 
eral reserve  banks.  The  exact  proportions  vary  slightly  for 
the  central  reserve  city,  the  reserve  city,  and  for  the  so-called 
"country  banks";  but  at  the  end  of  three  years  these  pro- 
portions are  respectively  seven-eighteenths,  six-fifteenths  and 
five-twelfths,  while  an  additional  five-eighteenths,  four-fif- 
teenths and  three-twelfths,  respectively,  must  be  kept  in  the 
member  bank's  own  vaults  or  in  its  federal  reserve  bank. 
While  a  minimum  of  one-third  of  the  required  reserves  must 
be  kept  in  the  member  bank's  own  vaults,  from  one-half  to 


478  READINGS  IN  CIVIL  GOVERNMENT 

two-thirds  of  the  total  reserves  will  ultimately  be  centralized 
in  the  federal  reserve  banks. 

Let  us  now  consider  the  provision  made  in  the  new  law  for 
insuring  the  "  elasticity "  of  bank  credit.  This,  as  will  be 
recalled,  concerns  the  expansion  and  contraction  of  deposits 
and  of  notes  in  response  to  fluctuating  demand. 

The  expansion  of  deposits  has  never  given  serious  difficulty. 

The  elastic  notes  in  the  new  system  are  known  as  "  federal 
reserve  notes.'*  These  are  the  obligations  of  the  United  States 
government  itself.  They  are  issued  at  the  discretion  of  the 
federal  reserve  board,  through  the  federal  reserve  agents,  to 
the  federal  reserve  banks.  The  federal  reserve  banks  pay  the 
notes  on  demand  to  the  member  banks,  from  which  they 
reach,  in  turn,  the  general  public.  The  denominations  of  the 
notes  are  five,  ten,  twenty,  fifty  and  one  hundred  dollars.  All 
the  notes  must  bear  the  distinctive  letters  and  serial  numbers 
which  have  been  assigned  by  the  federal  reserve  board  to  the 
reserve  banks  responsible  for  their  issue.  They  are  receivable 
at  par  by  the  reserve  banks  and  by  the  member  banks,  and 
also  by  the  United  States  government  for  all  public  dues.  They 
are  not  legal  tender  in  payments  to  individuals ;  but  this  will 
not  seriously  influence  their  general  acceptability.  They  are 
redeemable  in  gold  at  the  treasury  at  Washington,  and  in  gold 
or  lawful  money  at  any  of  the  reserve  banks.  Furthermore, 
they  constitute  a  first  lien  against  the  assets  of  the  reserve 
bank  through  which  they  are  issued.  Safer  notes  could  hardly 
be  imagined. 

Prepared  notes  are  kept  on  hand  in  sub-treasuries  or  mints. 
The  only  formalities  to  be  observed  by  the  federal  reserve 
banks  in  obtaining  them  are  to  have  on  hand  the  required  re- 
serve and  to  turn  over  to  the  federal  reserve  agent  an  amount 
of  collateral,  made  up  of  notes  and  bills  accepted  for  redis- 
count, equal  to  the  sum  of  notes  desired.  The  federal  reserve 
board  may  call  for  more  collateral  if  that  should  be  deemed 
necessary.  The  point  is,  however,  that  the  major  portion  of 
the  reserve  banks'  normal  investments  become  thoroughly  ac- 
ceptable cover  for  note  issue.  The  transformation  of  credit 


CURRENCY  AND  BANKING  479 

from  deposit  form  into  note  form  ought  not,  therefore,  to  be 
a  matter  of  difficulty. 

To  restrain  note  expansion  within  due  bounds  the  federal 
reserve  banks  are  required  to  hold  a  reserve  in  gold  of  forty 
per  cent,  against  their  federal  reserve  notes  in  actual  circu- 
lation which  are  not  already  offset  by  gold  or  lawful  money 
that  has  been  turned  over  to  the  federal  reserve  agent  for  the 
purpose  of  retiring  notes.  A  part  of  this  gold  reserve  must 
be  deposited  with  the  United  States  treasurer.  How  large 
this  part  shall  be  is  left  to  the  determination  of  the  secretary 
of  the  treasury,  but  it  must  in  any  case  be  not  less  than  five 
per  cent.  But  here,  too,  a  more  adjustable  check  is  provided 
in  the  authority  vested  in  the  federal  reserve  board  to  grant 
in  whole  or  in  part,  or  to  reject  altogether,  the  application  of 
a  federal  reserve  bank  for  notes,  and  to  fix  the  rate  of  interest 
on  the  amount  that  it  does  grant. 

The  law  contains  a  series  of  provisions  designed  to  insure 
contraction  of  notes  when  demand  falls  off.  The  notes  may 
not  be  counted  as  lawful  money  for  reserve  purposes  either 
by  member  banks  or  by  reserve  banks.  It  is,  therefore,  to  the 
interest  of  a  member  bank  to  deposit  in  its  reserve  bank  as 
speedily  as  possible  any  and  all  of  the  federal  reserve  notes 
that  it  receives  as  deposits.  The  reserve  banks,  in  turn,  are 
not  only  specifically  required  to  return  each  other's  notes  for 
redemption,  but  the  paying  out  by  one  reserve  bank  of  the 
notes  of  another  reserve  bank  involves  a  penalty  of  ten  per 
cent,  of  the  amount  so  paid  out. 

Consideration  should  now  be  given  to  the  plan  by  which  the 
new  system  makes  the  centralized  reserves  and  the  notes  of 
the  reserve  banks  available  to  the  member  banks. 

This  is  made  possible  by  provisions  for  re-discounting. 
With  the  indorsement  of  a  member  bank,  the  federal  reserve 
bank  may  discount  for  such  member  bank  notes,  drafts,  and 
bills  of  exchange  arising  out  of  actual  commercial  transactions. 
The  federal  reserve  board  determines  in  general  the  character 
of  such  paper.  But  the  statute  provides  that  paper  secured  by 
agricultural  products  or  other  goods  and  merchandise  is  not 


480  READINGS  IN  CIVIL  GOVERNMENT 

to  be  considered  ineligible  for  re-discounting.  On  the  other 
hand,  notes  and  bills  covered  by  or  put  out  for  carrying  stocks 
and  investment  securities,  except  notes  and  bonds  of  the  United 
States  government,  are  expressly  declared  ineligible.  The  ob- 
vious purpose  of  the  discrimination  against  investment  and 
similar  paper  is  to  discourage  security  speculation.  This  ap- 
pears needlessly  harsh.  Bills  acceptable  for  re-discount  may 
not  run  longer  than  ninety  days ;  but  here,  too,  an  exception  is 
made  in  favor  of  the  rural  borrower,  in  that  bills  issued  for 
agricultural  purposes  and  those  based  on  live  stock  may  have 
a  six  months'  maturity.  The  amount  of  these  long-time  bills, 
however,  must  be  limited  to  such  a  percentage  of  the  capital 
of  the  reserve  bank  accepting  them  as  may  be  determined  by 
the  federal  reserve  board.  In  order  to  control  the  utilization 
of  the  advantages  of  the  new  system  by  banks  which  are  un- 
willing to  assume  corresponding  obligations,  it  is  provided 
that,  in  applying  for  or  receiving  discounts,  a  member  bank 
can  act  for  a  non-member  only  with  the  express  permission  of 
the  federal  reserve  board.  On  the  whole,  therefore,  it  may  be 
concluded  that  as  long  as  a  member  bank  keeps  the  required 
proportion  of  its  reserves  in  lawful  money  in  its  own 
vaults,  the  question  of  obtaining  hand-to-hand  money  or 
that  of  strengthening  reserves  is  simply  one  of  having  on 
hand  an  adequate  supply  of  bills  acceptable  for  re-dis- 
counting. 

Centralization  of  reserves  involves  also  a  well -organized 
system  of  domestic  clearings.  This  was  not  overlooked  in 
planning  the  new  banking  system.  As  clearing  involves  the 
balancing  of  credits  against  debits,  in  the  absence  of  direct 
relations  between  debtors  and  creditors  the  process  can  be  exe- 
cuted only  through  the  mediation  of  an  agency  standing  be- 
tween them  and  acting  for  both.  Hence,  in  the  federal  re- 
serve system  the  federal  reserve  board  may  in  first  instance 
require  each  reserve  bank  to  act  as  a  clearing-house  for  its 
member  banks,  and  it  may  also  permit  the  reserve  banks,  for 
exchange  purposes,  to  carry  accounts  with  each  other.  The 
reserve  banks  must  receive  at  par  all  remittances  drawn  on 


CURRENCY  AND  BANKING  481 

their  own  depositors  that  may  be  sent  in  for  collection  by  mem- 
ber banks  and  other  reserve  banks.  Furthermore,  there  is 
the  interesting  provision  that  one  reserve  bank  may  send  as 
a  credit  to  a  second  reserve  bank  remittances  drawn  against  a 
third  reserve  bank  or  its  member  banks.  The  object  of  this 
provision  is  to  permit  three-cornered  exchange  whereby  a 
given  bank  liquidates  its  indebtedness  to  a  second  bank  by 
sending  a  credit  payable  at  a  third.  The  whole  system  of 
charges  for  such  clearings  is,  in  general,  under  the  control  of 
the  federal  reserve  board.  By  implication,  however,  member 
banks  may  not  charge  their  patrons  more  than  the  actual 
expense  involved  in  collecting  or  remitting  funds,  or  in  sup- 
plying exchanges.  To  systematize  the  clearings  between  the 
reserve  banks  themselves  it  is  provided  that  the  federal  re- 
serve board  may  act  as  the  clearing-house  for  them  or  it  may 
designate  one  of  the  reserve  banks  to  act  in  that  capacity. 
The  basis  of  an  effective  clearing  system  has  thus  been  pro- 
vided. 

Important  provisions  remain  to  be  noted  in  connection  with 
the  foreign  exchanges  and  the  international  movements  of 
gold.  Most  of  the  foreign  trade  of  the  United  States  has  here- 
tofore been  financed  by  foreign  bankers.  The  new  system 
permits  the  home  institutions  to  enter  the  field  for  this  busi- 
ness. As  noted  above,  member  banks  are  allowed,  within 
certain  limits,  to  accept  on  commission  drafts  and  bills  of  ex- 
change growing  out  of  exports  and  imports,  and  these  may  be 
sold  in  the  open  market  or  ultimately  re-discounted  at  the 
federal  reserve  banks.  National  banks  with  a  capital  and  sur- 
plus of  $1,000,000  or  more  may,  with  the  permission  of  the 
federal  reserve  board,  establish  branches  abroad.  Similarly, 
the  reserve  banks,  when  duly  authorized,  may  open  accounts 
in  foreign  countries  and  may  establish  agencies  for  purchas- 
ing, selling  and  collecting  bills  of  exchange  bearing  at  least 
two  names  and  maturing  within  ninety  days.  But  the  extent 
to  which  American  bankers  will  be  able  to  supplant  the  for- 
eigner will  depend,  of  course,  largely  upon  the  acceptability 
of  bills  drawn  in  dollars.  This  will  depend,  among  other 


482  EEADINGS  IN  CIVIL  GOVERNMENT 

things,  upon  the  market  rate  of  discount  in  the  United  States 
in  competition  with  the  rates  abroad.  If  the  new  system  suc- 
cessfully establishes  American  credit  in  the  world  markets,  a 
large  part  of  the  tribute  that  American  commerce  now  pays 
to  foreign  bankers  will  stay  at  home. 

ADDITIONAL  READINGS 

1— The  Money  Market,  Pratt,  S.  8.,  The  Work  of  Wall  Street, 

174-99. 

2— The  Bank  Statement,  Ibid.,  200-14. 
3_The  Credit  System,  Fender,  W.  A.,  Government  Credit  and 

Its  Uses,  16-34. 
4— The  Nature  and  Function  of  Money,  Scott,  W.  A.,  Money 

and  Banking,  159-88. 

5 — The  Greenbacks,  White,  H.,  Money  and  Banking,  130-63. 
6— The  National  Bank  System,  Ibid.,  372-84. 


CHAPTEB  XXI 
REGULATION  OF  COMMERCE 

90.    THE  POWER  OP  CONGRESS  TO  CONTROL  INTER-STATE 
COMMERCE. 

The  Constitution,  Article  I,  Section  8,  says:  "Congress  shall 
have  power  to  ...  regulate  commerce  with  foreign  nations, 
and  among  the  several  States,  and  with  the  Indian  tribes."  Al- 
though this  language  seems  to  be  perfectly  clear,  its  interpretation 
has  caused  much  difficulty  because  the  methods  and  agencies  of  carry- 
ing on  commerce  are  not  the  same  now  as  when  this  commerce  clause 
was  written.  In  the  following  extract  Mr.  J.  S.  Wise  speaks  of  the 
difficulties  and  summarizes  a  few  of  the  principles  followed  by  the 
courts  in  dealing  with  them : 

This  exclusive  power  of  regulating  commerce  was  con- 
ferred upon  Congress  for  a  reason.  It  was  the  offspring  of 
many  short-sighted,  vexatious,  and  discriminating  regulations 
imposed  by  the  States  upon  vessels  from  other  States  entering 
their  ports,  while  they  retained  the  power  to  legislate  on  the 
subject  under  the  Articles  of  Confederation.  The  transfer 
of  the  subject  to  exclusive  Federal  control  was  made  delib- 
erately after  these  embarrassing  experiences.  Nearly  a  hun- 
dred years  ago  the  Supreme  Court  declared  that  it  was  doubt- 
ful whether  any  of  the  evils  of  weakness  under  the  Articles 
of  Confederation  contributed  more  to  the  adoption  of  the 
Constitution  than  the  conviction  that  ''commerce  ought  to  be 
regulated  by  Congress." 

No  clause  of  the  Federal  Constitution  has  given  rise  to 
more  litigation  than  this  so-called  commerce  clause.  It  was 
first  interpreted  by  Chief  Justice  Marshall  in  Gibbons  vs.  Og- 
den}  and  its  scope  and  legal  effect  have  been  under  consid- 

483 


484  HEADINGS  IN  CIVIL  GOVERNMENT 

eration  in  about  two  hundred  and  fifty  cases  since  then  de- 
cided by  the  Supreme  Court  of  the  United  States.  Many 
volumes  have  been  written  concerning  the  rights  of  citizens 
under  this  clause,  and  it  would  be  beyond  the  scope  of  this 
work  to  set  forth  even  an  epitome  of  the  decisions  interpreting 
it  rendered  by  the  Supreme  Court. 

We  shall  content  ourselves  with  a  statement  of  a  few  of 
the  leading  principles  settled  by  the  adjudicated  cases,  and 
the  remark  that  the  litigation  has,  for  the  most  part,  arisen 
out  of  acts  of  State  legislatures,  which  have  been  challenged 
as  invading  the  exclusive  province  of  Congress  to  regulate 
interstate  commerce,  etc. 

The  first  important  case  arising  under  this  clause  was,  as 
above  stated,  Gibbons  vs.  Ogden,  and  the  last  case  of  impor- 
tance decided  by  the  Supreme  Court  is  the  celebrated  so- 
called  " merger  decision/*  involving  the  right  of  Congress,  in 
the  exercise  of  its  power  to  regulate  commerce,  to  pass  laws 
forbidding  the  merger  of  corporations  owning  parallel  and 
competing  lines  and  engaged  in  interstate  commerce. 

The  master  mind  of  Marshall  in  the  first  case  announced 
the  following  fundamental  principles,  which  remain  undis- 
turbed : 

1.  That  the  grant  of  powers  to  Congress,  in  the  particulars 
named,  was  not  only  absolute  and  embraced  the  power  to 
regulate  navigation,  but  was  exclusive  of  any  rights  of  States 
to  legislate  on  the  subject. 

2.  That  it  did  not  affect  the  right  of  the  States  to  legis- 
late on  purely  internal  commerce  or  to  enact  inspection  laws 
and  health  laws,  or  purely  police  regulations. 

3.  That  the  laws  last  named  "form  a  portion  of  that  im- 
mense mass  of  legislation  which  embraces  everything  within 
the  territory  of  a  State,  not  surrendered  to  the  general  gov- 
ernment;  all  which  can  be  most  advantageously  exercised 
by  the  States  themselves.     Inspection  laws,  quarantine  laws, 
health  laws  of  every  description,  as  well  as  laws  for  regulating 
the  internal  commerce  of  a  State,  and  those  which  respect 
turnpike  roads,  ferries,  etc.,  are  component  parts  of  this  mass. 


REGULATION  OF  COMMERCE  485 

No  direct  general  power  over  these  objects  is  granted  to  Con- 
gress, and  consequently  they  remain  subject  to  State  legisla- 
tion." 

4.  But  where  the  States,  in  the  exercise  of  the  powers  last 
mentioned,  enact  laws  which  come  in  conflict  with  Federal 
laws  regulating  commerce,  the  acts  of  the  State  must  yield 
to  the  laws  of  Congress.  That  the  nullity  of  all  such  acts  is 
produced  by  the  declaration  that  the  Constitution  is  supreme. 

Throughout  all  the  multitudinous  litigation  which  has  fol- 
lowed arising  under  this  clause  the  soundness  of  these  prin- 
ciples has  never  been  questioned.  If  the  case  has  arisen  upon 
a  State  statute  the  question  has  been,  Does  the  State  statute 
directly  legislate  on  the  forbidden  subject?  If  so,  it  is  void. 
Does  it,  although  within  the  general  scope  of  State  power,  in 
its  effect  regulate  interstate  commerce,  etc.  ?  If  so,  it  must 
yield  to  the  exclusive  power  of  Congress  to  control. 

If  it  be  a  mere  regulation  of  inspection,  or  health,  or  exer- 
cise of  the  unquestioned  police  powers  of  the  State,  and  its  ef- 
fect on  commerce  be  merely  incidental  and  not  determinative, 
then  it  is  a  law  within  the  powers  of  the  State. 

If  the  question  has  arisen  upon  a  Federal  statute,  the  first 
inquiry  has  invariably  been,  Is  the  law,  fairly  construed,  a 
regulation  of  that  class  of  commerce  committed  absolutely  and 
exclusively  by  the  Constitution  to  the  regulation  of  Congress  ? 
If  so,  it  is  a  valid  law,  for  the  power  to  legislate  is  as  broad 
as  the  grant  of  exclusive  control. 

These  questions  have  arisen  in  infinite  variety  and  com- 
plexity, presenting  new  aspects  in  each  successive  case,  and 
it  is  impossible  to  generalize  them  in  this  discussion.  The 
opposing  views  in  each  case  are  the  result  of  two  theories 
which  have  given  rise  to  most  of  the  controversies  between 
Federal  and  State  authority,  viz.,  on  the  one  hand,  the  theory 
of  broad  latitudinarian  construction  of  Federal  powers,  and, 
on  the  other,  the  theory  of  strict  construction.  Pursuing  the 
one  or  the  other  of  these  theories,  men  of  the  highest  intellect 
and  character  have,  from  the  foundation  of  the  government, 
been  arrayed  in  opposition  to  each  other  upon  every  impor- 


486  EEADINGS  IN  CIVIL  GOVERNMENT 

tant  question  of  construction  that  has  arisen,  and  perhaps 
no  more  striking  illustration  of  this  irreconcilable  conflict  of 
views  may  be  found  in  our  whole  judicial  literature  than  in 
the  earnest,  almost  angry,  discordance  of  our  Supreme  Court 
in  the  last  important  decision  on  this  commerce  clause. 

But  the  constitutional  inhibition  does  not  prevent  the 
States  from  enacting  laws  which  prevent  non-residents  from 
engaging  in  certain  classes  of  employments  within  their  limits. 
Such,  for  example,  is  the  right  of  a  State  to  limit  the  right 
to  fish  and  hunt  within  her  borders  to  her  own  citizens.  It 
has  been  held  that  the  States  did  not  invest  the  Federal 
government  with  any  portion  of  their  power  and  control  over 
fishing  and  hunting  within  their  borders;  that  the  fish 
and  shellfish  and  game  in  every  State  belong  to,  peculiarly 
and  of  right,  and  form  part  of  the  food  supply  of,  the 
people  in  each  State,  and  that  it  is  within  the  police  powers 
of  the  State,  without  any  right  of  interference  by  Federal 
authority,  to  determine  who  shall  and  who  shall  not  take  the 
fish  and  game  within  her  borders,  and  even  to  prohibit  the 
shipping  of  the  same  beyond  the  limits  of  the  State.  Thus 
when  a  Virginia  law  punished  a  citizen  of  Maryland  for  tak- 
ing oysters  from  Virginia  oyster  beds,  and  he  claimed  that 
he  was  engaged  in  commerce,  the  Supreme  Court  sustained 
the  State  law,  and  denied  the  claim  of  license  to  fish  in 
Virginia  waters  as  a  matter  of  commercial  right.  So,  a  law 
of  Connecticut  regulating  the  manner  of  taking  game  in 
that  State  and  forbidding  its  exportation  was  held  valid. 
The  duty  of  preserving  the  game  was  declared  to  be  a  trust 
for  her  own  people.  And  State  laws  prohibiting  exhaustive 
methods  of  fishing  in  waters  within  State  jurisdiction,  or  the 
use  of  destructive  instruments,  are  within  the  powers  of 
the  State. 

91.    THE  HEPBURN  INTER-STATE  COMMERCE  ACT  OF  1906. 

The  increasing  demand  for  a  more  thorough  regulation  of  inter- 
state commerce  led  Congress  in  1906  to  enact  a  law  which  greatly 


EEGULATION  OF  COMMERCE  487 

extended  the  scope  of  that  of  1887  and  enlarged  the  powers  of  the 
Commission.     The  important  provisions  of  this  Act  are  here  given: 

Sec.  1.  That  the  provisions  of  this  Act  shall  apply  to  any 
corporation  or  any  person  or  persons  engaged  in  the  trans- 
portation of  oil  or  other  commodity,  except  water  and 
except  natural  or  artificial  gas,  by  means  of  pipe  lines,  or 
partly  by  pipe  lines  and  partly  by  railroad,  or  partly  by 
pipe  lines  and  partly  by  water,  who  shall  be  considered 
and  held  to  be  common  carriers  within  the  meaning  and  pur- 
pose of  this  Act.  .  .  . 

The  term  "common  carrier"  as  used  in  this  Act  shall 
include  express  companies  and  sleeping  car  companies. 
The  term  "railroad"  as  used  in  this  Act,  shall  include  all 
bridges  and  ferries  used  or  operated  in  connection  with  any 
railroad,  and  also  all  the  road  in  use  by  any  corporation 
operating  a  railroad,  whether  owned  or  operated  under  a 
contract,  agreement,  or  lease,  and  shall  also  include  all 
switches,  spurs,  tracks,  and  terminal  facilities  of  every  kind 
used  or  necessary  in  the  transportation  of  persons  or  prop- 
erty designated  herein,  and  also  all  freight  depots,  yards 
and  grounds  used  or  necessary  in  the  transportation  or 
delivery  of  any  of  said  property;  and  the  term  transporta- 
tion shall  include  .  .  .  the  receipt,  delivery,  elevation 
and  transfer  in  transit,  ventilation,  refrigeration  or  icing, 
storage  and  handling  of  property  transported.  .  .  . 

All  charges  made  for  any  service  rendered  or  to  be  ren- 
dered in  the  transportation  of  passengers  or  property  as 
aforesaid,  or  in  connection  therewith,  shall  be  just  and  rea- 
sonable; and  every  unjust  and  unreasonable  charge  for  such 
service  or  any  part  thereof  is  prohibited  and  declared  to  be 
unlawful. 

No  common  carrier  subject  to  the  provisions  of  this  Act, 
shall,  after  January  first,  nineteen  hundred  and  seven,  directly 
or  indirectly,  issue  or  give  any  interstate  free  ticket,  free 
pass,  or  free  transportation  for  passengers,  except  to  its  em- 


488  READINGS  IN  CIVIL  GOVERNMENT 

ploy es  and  their  families  .  .  .  (and  certain  other  specified 
classes  of  persons). 

From  and  after  May  first,  nineteen  hundred  and  eight,  it 
shall  be  unlawful  for  any  railroad  company  to  transport  from 
any  State,  Territory,  or  the  District  of  Columbia,  to  any  other 
State,  Territory,  or  the  District  of  Columbia,  or  to  any 
foreign  country,  any  article  or  commodity,  other  than  tim- 
ber and  the  manufactured  products  thereof,  manufactured, 
mined  or  produced  by  it,  or  under  its  authority,  or  which  it 
may  own  in  whole,  or  in  part,  or  in  which  it  may  have  any 
interest  direct  or  indirect  except  such  articles  or  commodities 
as  may  be  necessary  and  intended  for  its  own  use  in  the  con- 
duct of  its  business  as  a  common  carrier. 

Any  common  carrier  subject  to  the  provisions  of  this  Act, 
upon  the  application  of  any  lateral,  branch  line  of  railroad, 
or  of  any  shipper,  tendering  interstate  traffic  for  transporta- 
tion, shall  construct,  maintain  and  operate  upon  reasonable 
terms  a  switch  connection  .  .  .  and  shall  furnish  cars  for 
the  movement  of  such  traffic  to  the  best  of  its  ability  with- 
out discrimination  in  favor  of  or  against  any  such  ship- 
per. .  .  . 

The  Commission  may  determine  and  prescribe  the  form  in 
which  the  schedules  required  by  this  section  to  be  kept  open 
to  public  inspection  shall  be  prepared  and  arranged  and  may 
change  the  form  from  time  to  time  as  shall  be  found  expedi- 
ent. .  .  . 

The  willful  failure  upon  the  part  of  any  carrier  subject 
to  said  Acts  to  file  and  publish  the  tariffs  or  rates  and  charges 
as  required  by  said  Acts,  or  strictly  to  observe  such  tariffs 
until  changed  according  to  law,  shall  be  a  misdemeanor,  and 
upon  conviction  thereof  the  corporation  offending  shall  be 
subject  to  a  fine  of  not  less  than  one  thousand  dollars  nor 
more  than  twenty  thousand  dollars  for  each  offense;  and  it 
shall  be  unlawful  for  any  person,  persons,  or  corporations  to 
offer,  grant,  or  give,  or  to  solicit,  accept  or  receive  any 
rebate,  concession,  or  discrimination.  .  .  .  Every  person 
or  corporation  whether  carrier  or  shipper,  who  shall  know- 


BEGULATION  OF  COMMERCE  489 

ingly  offer,  grant,  or  give,  or  solicit,  accept,  or  receive  any 
such  rebates,  concession,  or  discrimination  shall  be  deemed 
guilty  of  a  misdemeanor,  and  a  conviction  thereof  shall  be 
punished  by  a  fine  of  not  less  than  one  thousand  dollars  nor 
more  than  twenty  thousand  dollars:  Provided,  That  any 
person  or  any  officer  or  director  of  any  corporation  subject 
to  the  provision  of  this  Act  .  .  .  who  shall  be  convicted 
as  aforesaid,  shall,  in  addition  to  the  fine  herein  provided  for, 
be  liable  to  imprisonment  in  the  penitentiary  for  a  term  of 
not  exceeding  two  years,  or  both  such  fine  and  imprisonment, 
in  the  discretion  of  the  court.  .  .  . 

Sec.  15.  That  the  Commission  is  authorized  and  empow- 
ered .  .  .  whenever  ...  it  shall  be  of  the  opinion 
that  any  of  the  rates  or  charges  whatsoever  demanded, 
charged  or  collected  by  any  common  carrier  ...  or  that 
any  regulation  or  practices  whatsoever  of  such  carrier  or  car- 
riers affecting  such  rates,  are  unjust  or  unreasonable  or  un- 
justly discriminatory,  or  unduly  preferential  or  prejudicial, 
or  otherwise  in  violation  of  any  of  the  provisions  of  this  Act, 
to  determine  and  prescribe  what  shall  be  the  just  and  reason- 
able rate  or  rates,  charge  or  charges  to  be  thereafter  observed 
in  such  case  as  the  maximum  to  be  charged.  .  .  .  All 
orders  of  the  Commission,  except  orders  for  the  payment  of 
money,  shall  take  effect  within  such  reasonable  time,  not  less 
than  thirty  days,  and  shall  continue  in  force  for  such  period 
of  time,  not  exceeding  two  years  as  shall  be  prescribed  by  the 
Commission,  unless  the  same  shall  be  suspended  or  modified 
or  set  aside  by  the  Commission,  or  be  suspended  or  set  aside 
by  a  court  of  competent  jurisdiction.  .  .  . 

Sec.  16.  If  a  carrier  does  not  comply  with  an  order  for 
the  payment  of  money  within  the  time  limit  in  such  order,  the 
complainant  .  .  .  may  file  in  the  circuit  court  of  the 
United  States  for  the  district  in  which  he  resides  ...  a 
petition  setting  forth  the  cause  for  which  he-  claims  damages 
and  the  order  of  the  Commission  in  the  premises.  Such  suit 
shall  proceed  in  all  respects  like  other  civil  suits  for  damages, 
except  that  on  the  trial  of  such  suit  the  findings  and  order 


490  READINGS  IN  CIVIL  GOVERNMENT 

of  the  Commission  shall  be  prima  facie  evidence  of  the  facts 
therein  stated.  .  .  . 

The  Commission  may,  in  its  discretion,  prescribe  the  form 
of  any  and  all  accounts,  records,  and  memoranda  to  be  kept 
by  carriers  subject  to  the  provisions  of  this  Act.  .  .  . 

Sec.  24.  That  the  Interstate  Commerce  Commission  is 
hereby  enlarged  so  as  to  consist  of  seven  members  with  terms 
of  seven  years,  and  each  shall  receive  ten  thousand  dollars' 
compensation  annually.  .  .  . 

92.    THE   SHERMAN   ANTI-TRUST   ACT   OF   1890. 

While  the  regulation  of  railroad  rates  has  been  one  of  the  most 
difficult  problems  with  which  Congress  has  had  to  deal  in  connection 
with  interstate  commerce,  it  is  by  no  means  the  only  one.  Modern 
industrial  development  has  tended  strongly  toward  the  formation  of 
trusts — great  combinations  of  capital  which  have  threatened  to  stifle 
fair  competition.  Congress  considered  that  its  power  to  regulate 
commerce  enabled  it  to  meet  this  situation  and  accordingly  in  1890 
it  passed  an  anti-trust  measure,  the  chief  provisions  of  which  are  as 
follows : 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 

Section  1.  Every  contract  combination  in  the  form  of 
trust  or  otherwise,  or  conspiracy,  in  restraint  of  trade  or  com- 
merce among  the  several  States,  or  with  foreign  nations,  is 
hereby  declared  to  be  illegal.  Every  person  who  shall  mak.' 
any  such  contract  or  engage  in  any  such  combination  or 
conspiracy,  shall  be  deemed  guilty  of  a  misdemeaner,  and,  on 
conviction  thereof,  shall  be  punished  by  fine  not  exceeding 
five  thousand  dollars,  or  by  imprisonment  not  exceeding  one 
year,  or  by  both  said  punishments,  in  the  discretion  of  the 
court. 

Sec.  2.  Every  person  who  shall  monopolize,  or  attempt  to 
monopolize,  or  combine  or  conspire  with  any  person  or  per- 
sons, to  monopolize  any  part  of  the  trade  or  commerce  among 
the  several  States,  or  with  foreign  nations,  shall  be  deemed 
guilty  of  a  misdemeanor,  and,  on  conviction  thereof,  shall  be 


REGULATION  OF  COMMERCE  491 

punished  by  fine  not  exceeding  five  thousand  dollars,  or  by 
imprisonment  not  exceeding  one  year,  or  by  both  said  punish- 
ments, in  the  discretion  of  the  court. 

Sec.  3.  Every  contract,  combination  in  form  of  trust  or 
otherwise,  or  conspiracy,  in  restraint  of  trade  or  commerce 
in  any  territory  of  the  United  States  or  "the  District  of  Colum- 
bia, or  in  restraint  of  trade  or  commerce  between  any  such 
Territory  and  another,  or  between  any  such  Territory  or  Ter- 
ritories and  any  State  or  States  or  the  District  of  Columbia, 
or  with  foreign  nations,  or  between  the  District  of  Columbia 
and  any  State  or  States  or  foreign  nations,  is  hereby  declared 
illegal.  Every  person  who  shall  make  any  such  contract  or 
engage  in  any  such  combination  or  conspiracy  shall  be  deemed 
guilty  of  a  misdemeanor,  and,  on  conviction  thereof  shall  be 
punished  by  fine  not  exceeding  five  thousand  dollars,  or  by 
imprisonment  not  exceeding  one  year,  or  by  both  said  punish- 
ments, in  the  discretion  of  the  court. 

Sec.  4.  The  several  Circuit  Courts  of  the  United  States 
are  hereby  invested  with  jurisdiction  to  prevent  and  restrain 
violations  of  this  act.  .  .  . 

Sec.  6.  Any  property  owned  under  any  contract  or  by  any 
combination,  or  pursuant  to  any  conspiracy  (and  being  the 
subject  thereof)  mentioned  in  section  one  of  this  act,  and  be- 
ing in  the  course  of  transportation  from  one  State  to  another, 
or  to  a  foreign  country,  shall  be  forfeited  to  the  United 
States,  and  may  be  seized  and  condemned  by  like  proceedings 
as  those  provided  by  law  for  the  forfeiture,  seizure  and  con- 
demnation of  property  imported  into  the  United  States  con- 
trary to  law. 

Sec.  7.  Any  person  who  shall  be  injured  in  his  business  or 
property  by  any  other  person  or  corporation  by  reason  of  any- 
thing forbidden  or  declared  to  be  unlawful  by  this  act,  may 
sue  therefor  in  any  Circuit  Court  of  the  United  States,  in  the 
district  in  which  the  defendant  resides  or  is  found,  without 
respect  to  the  amount  in  controversy,  and  shall  recover  three- 
fold the  damages  by  him  sustained,  and  the  costs  of  suit, 
including  a  reasonable  attorney's  fee. 


492  EEADINGS  IN  CIVIL  GOVERNMENT 

Sec.  8.  That  the  word  "person,"  or  "persons,"  whenever 
used  in  this  act  shall  be  deemed  to  include  corporations  and 
associations  existing  under  or  authorized  by  the  laws  of  either 
the  United  States,  the  laws  of  any  of  the  Territories,  the 
laws  of  any  State  or  the  laws  of  any  foreign  country. 

Approved,  July  2,  1890. 


93.   FEDERAL   CONTROL  OP   TRUSTS. 

How  far  shall  the  Federal  Government  go  in  regulating  trusts  by 
carrying  out  the  principles  of  the  Sherman  Actf  That  it  has  al- 
ready gone  a  great  way  and  will  in  the  future  go  further,  is  the  view 
expressed  in  the  following  paper  read  by  Mr.  Tolcott  Williams 
before  the  American  Academy  of  Political  and  Social  Science  in 
1908: 

A  railroad  corporation  is  regulated  by  the  Federal  Govern- 
ment, primarily  not  because  it  is  engaged  in  interstate  com- 
merce but  because  the  regulation  of  interstate  commerce  is 
the  national  duty  of  Congress.  It  is  not  the  relation  of  the 
railroad  to  this  commerce  which  brings  into  action  the  Federal 
Government;  but  the  relation  of  the  Federal  Government  to 
interstate  commerce  which  brings  the  railroad  under  federal 
regulation.  Any  other  corporation  which  enters  interstate 
commerce  to  an  extent  which  renders  its  regulation  neces- 
,sary  to  the  regulation  of  interstate  commerce  will  for  the 
same  reason  come  under  the  scope  and  sweep  of  federal 
power.  .  .  . 

This  deep  and  assured  conviction  that  Congress  would 
finally  legislate  upon  the  great  corporations  and  combina- 
tions, I  found  pervaded  the  conference  on  trusts  called  at 
Chicago  in  the  last  week  of  October  by  the  National  Civic 
Federation,  to  my  connection  with  which  I  owe  my  presence 
on  this  platform,  attending  it  as  I  did  as  a  delegate  from 
this  state  appointed  by  the  governor.  Possessing  no  substan- 
tive powers  and  in  none  of  the  customary  or  organic  senses 
of  the  word  representative,  it  included  delegates  appointed 
by  the  chief  executive  of  most  of  the  states  in  the  Union 


REGULATION  OF  COMMERCE  493 

interested  in  the  subject,  state  officers  and  the  counsel  of  the 
federal  government  engaged  in  the  regulation  of  railroads 
and  the  prosecution  of  trusts,  the  counsel  of  many  of  the 
larger  railroads  and  corporations,  and  delegates  from  the 
trade  combinations,  like  the  National  Druggists'  Association 
and  labor  unions,  including  the  American  Federation  of 
Labor  and  various  farmers'  organizations.  Such  a  body 
represents  without  being  representative.  Such  a  body,  hav- 
ing no  legislative  responsibility  and  no  party  responsibility 
met  for  opinion  and  not  for  action,  is,  as  every  journalist 
comes  to  know,  a  better  gauge  of  public  sentiment  at  any 
given  moment  than  bodies  of  real  power  and  actual  impor- 
tance. Having  to  act,  these  latter  and  their  members  must 
be  careful  of  expression;  but  a  conference  like  that  which 
met  in  Chicago  reflects  and  mirrors  with  great  accuracy  the 
average  and  widespread  opinion  of  the  day,  before  it 
crystallizes  into  law,  when  all  can  see  the  record  and  ex- 
pression of  authoritative  public  opinion  finally  expressed  in 
statutory  form. 

No  one  could  be  a  member  of  this  body,  meet  its  member- 
ship, share  its  deliberations  and  share  in  the  work  of  secur- 
ing an  unanimous  expression  of  opinion  from  its  diverse 
membership,  without  securing  an  invaluable  impression  of 
floating  opinion.  Such  a  conference,  if  its  members  come  to 
a  common  opinion,  expresses  exactly  and  accurately  what 
people  would  like  to  have,  before  the  bulky  cumberous  and 
official  action  of  national  parties  and  the  national  legislature 
has  acted  and  enacted  law. 

The  Chicago  Conference  on  Combinations  and  Trusts  of 
the  National  Civic  Federation  made  perfectly  clear  what  I 
believe  is  the  settled  purpose  and  resolution  of  the  American 
people,  that  there  shall  be  no  combination  without  regulation. 
The  decision  of  the  Supreme  Court  on  the  Boycott  in  the 
Danbury  hat  case  has  put  this  popular  resolution  into  judicial 
form,  and  the  support  and  approval  given  this  decision  and 
the  widespread  opposition  to  any  proposed  legislation  modify- 
ing or  seeming  to  modify  this  decision  shows  how  near  it 


494  EEADINGS  IN  CIVIL  GOVERNMENT 

is  to  public  conviction.  Whether  in  capital  or  labor,  whether 
in  railroads  or  industrial  corporations,  whether  in  distribut- 
ing agencies,  trade  associations  like  the  druggists'  or  fanners' 
•association,  combination  without  regulation  will  not  be  per- 
mitted by  the  American  people.  Combinations,  to  any  size, 
any  extent  and  any  purpose  not  prohibited  by  law,  the  Amer- 
ican will  accept.  The  mere  size  of  anything  never  daunts 
him.  He  is  used  to  big  things.  But  combination  which  is 
not  regulated  he  will  not  permit.  The  real  choice  is  not 
whether  there  shall  be  regulation  or  not;  but  whether  this 
regulation  shall  be  by  and  through  a  criminal  statute,  the 
Sherman  Anti-Trust  Act  of  1890,  or  through  administrative 
regulation  and  supervision.  The  whole  body  of  combina- 
tions, railroad  and  industrial,  of  labor  and  of  farmer,  of 
wholesaler  and  retailer,  have  no  choice  between  regulation 
or  not;  but  between  the  drastic  operation  of  the  criminal 
courts  through  this  federal  law  and  similar  state  statutes  or 
reports  to  and  supervision  by  orderly  civil  machinery.  One 
or  the  other  there  will  be,  because  combination  without  regu- 
lation our  people  and  public  will  not  permit.  .  .  . 

The  act  of  1890,  the  Sherman  Anti-Trust  Act,  is  but  one 
of  a  network  of  legislation  covering  all  our  states.  Of  vary- 
ing character  these  laws  and  the  decisions  and  prosecutions 
over  them  have  extended,  as  already  shown,  to  every  branch 
of  trade.  Little  of  what  the  common  law  permitted  in  com- 
bination in  restraint  of  trade  is  left.  How  much  even  this 
was,  the  wise  man  will  not  too  strictly  define.  What  the 
cankerworm  of  federal  law  and  its  interpretation  and  ad  min- 
istration has  not  destroyed,  the  caterpillar  in  the  branching 
tree  of  state  jurisdiction  has  eaten.  If  a  combination  in  re- 
straint of  trade  lives  at  peace  in  this  country,  it  is  not  without 
apprehension,  and  those  called  to  a  close  acquaintance  with 
the  managers  and  the  counsel  of  our  great  combinations  in 
industry  and  transportation,  know  best  their  manifold  anx- 
iety. I  speak  with  knowledge  when  I  record  that  in  the 
past  five  years,  the  great  and  most  conspicuous  corporations 
in  both  fields,  in  and  out  of  interstate  commerce,  have  been 


REGULATION  OF  COMMERCE  495 

solemnly  advised  that  past  decisions,  state  and  federal,  have 
only  to  be  pushed  to  their  full  legitimate  logical  conclusion 
to  challenge  the  security  of  any  corporate  combination  from 
the  United  States  Steel  Corporation  and  the  Pennsylvania 
Railroad  down.  No  such  "badge  of  sufferance"  has  ever 
been  imposed  by  law  on  capital  in  modern  history  since  the 
Jew  was  baited  from  York  to  Venice,  by  Plantagenet  and 
Doge  alike.  Not  in  our  history  has  there  been  on  any  sub- 
ject of  mingled  moral  and  economic,  social  and  legal  relations 
such  general  unanimous  and  universal  exercise  of  the  law- 
making,  judicial  and  law-enforcing  power  since  the  legisla- 
tion from  1820  to  1860  on  chattel  slavery,  and  this  was  di- 
vided into  two  opposing  purposes — North  and  South.  The 
national  resolution  that  there  shall  be  no  combination  with- 
out regulation  enters  every  state,  [and]  controls  federal  laws, 
decisions  and  prosecutions.  .  .  . 

It  is  a  matter  of  common  knowledge,  that  in  the  period  of 
development  in  railroads,  industries  and  distribution  after  the 
Civil  War,  from  1865  to  1881,  when  the  first  agitation  began, 
railroads,  without  challenge,  granted  rebates,  discriminated  in 
rates,  agreed  on  rate  sheets  and  pooled  their  receipts,  manu- 
facturers combined  on  prices  and  divided  territory,  whole- 
salers and  retailers  united  to  preserve  the  margin  between 
wholesale  and  retail  prices  and  refused  goods  to  those  who 
broke  scheduled  prices.  These  were  all  openly  and  publicly 
done  for  a  score  of  years.  These  acts  and  this  policy  were 
accepted  by  the  public.  The  records  of  more  than  one  of  our 
great  corporations  will  show  that  counsel  advised  that  these 
practices  were  legal.  At  least  one  railroad,  a  party  to  the 
notorious  contract  on  oil  freights  with  the  Southern  Improve- 
ment Company,  was  advised  by  its  solicitor  on  that  contract 
that  it  had  a  right  to  sell  its  transportation  at  different  rates 
to  different  customers  as  freely  "as  a  grocer  sells  sugar  at 
different  prices/'  The  whole  range  of  methods  now  con- 
demned and  prosecuted  was  accepted  without  interference  by 
courts  or  legislatures  for  years.  One  reason  for  the  extreme 
bitterness  among  capitalists  over  sixty  years  of  age  is  that 


496  READINGS  IN  CIVIL  GOVERNMENT 

they  find  themselves  pilloried  and  prosecuted  for  acts  once 
the  accepted  path  to  railroad  profits  and  business  success. 
The  prospect  that  the  United  States  would  reach  the  con- 
clusion and  conviction  on  all  these  issues,  to-day  established 
in  English  law  was,  up  to  thirty  years  ago,  stronger  in  this 
country  than  in  England.  .  .  . 

It  is  the  fashion  to  treat  the  Sherman  Anti-Trust  Act  of 
1890  as  if  it  were  sporadic,  passed  without  knowledge  or  con- 
sciousness of  its  scope  and  sweep.  If  this  means  that  in  1890 
no  one  expected  to  see  railroad  and  industrial  corporations 
which  had  been  growing  in  power  and  might  for  twenty-five 
years,  since  the  Civil  War,  brought  under  an  absolute  control 
which  has  shocked  European  and  English  financial  opinion 
by  its  relentless  penalties,  this  is  perfectly  true;  but  if  any 
one  imagines  that  this  act  did  not  respond  to  and  express  a 
national  purpose  as  wide,  deep  and  persistent  as  any  in  our 
history,  he  misreads  the  record.  If  the  Sherman  Act  had  been 
a  mere  accident,  running  counter  to  the  deeper  national  pur- 
pose, the  courts  would  have  minimized  it,  as  our  courts  have 
so  often  dealt  with  the  legislative  vagary  of  the  day ;  but  as 
all  know  the  crucial  decisions  on  this  and  like  laws  by  courts 
of  last  resort,  at  Washington  and  elsewhere,  have  had  the 
precise  quality  that  the  law  (up  to  the  decision  carrying  a 
step  farther  the  regulation  or  prohibition  of  competition  de- 
stroying combination),  had  been  such  as  to  leave  the  court 
open  to  go  either  way.  Uniformly,  the  corporation  view  has 
lost.  This  common  action  in  both  fields  of  our  complex  system 
and  through  the  triple  instrumentalities  of  each,  never  takes 
place  and  never  can  take  place,  unless  something  more  fun- 
damental than  opinion  or  even  law  is  at  work — a  primal  na- 
tional instinct. 

When  the  National  Civic  Federation  called  its  first  confer- 
ence on  trusts  in  1903,  it  was  impossible  to  secure  from  that 
gathering  any  common  action.  No  resolutions  were  passed, 
because  the  general  national  purpose  was  not  yet  clear.  The 
conference  which  met  last  October  at  Chicago  was  precisely 
such  a  body  as  might  have  been  expected  to  break  up  again 


REGULATION  OF  COMMERCE  497 

without  result.  It  was  heterogeneous,  it  had  no  common  pur- 
pose of  standard,  and  at  heart  half  of  its  members  had  strong 
personal  interests,  through  their  connection  with  railroads, 
trusts,  unions,  granges,  commercial  associations  and  federal 
and  state  governments.  If  this  body  reached  a  common  con- 
clusion, it  is  because  the  popular  will  is  now  clear  as  to  the 
regulation  of  combination.  The  only  error  was  in  not  seeing 
how  universal  and  without  exceptions  their  purpose  was.  It 
was  generally  accepted,  and  the  committee  on  resolutions  in- 
cluded men  in  each  category  mentioned,  that  railroad  combina- 
tions could  be  permitted  under  the  supervision  of  the 
Interstate  Commerce  Commission,  that  the  great  industrial 
corporations,  ' '  Trusts, ' '  must  be  classified,  and  such  as  affected 
interstate  commerce  so  as  to  affect  its  federal  regulation  must 
pass  under  the  supervision  of  the  Federal  Bureau  of  Corpora- 
tions, that  commercial  associations,  maintaining  wholesale  and 
retail  discounts,  must  be  given  the  common  law  rights  vouch- 
safed them  in  the  past,  before  the  Sherman  and  state  acts 
treated  the  protection  of  discounts  as  a  restraint  of  trade,  and 
that  unions  and  granges,  since  they  were  not  organized  for 
profit,  should  be  permitted  combination  in  interstate  com- 
merce without  regulation  and  supervision. 

94.   THE  ANTI-TRUST  ACTS  OF  1914. 

In  1911  the  Supreme  Court  ordered  the  dissolution  of  the  Stand- 
ard Oil  and  American  Tobacco  Trusts.  But  it  soon  became  ap- 
parent that  the  public  would  gain  no  advantage  from  this  victory 
unless  some  supervisory  authority  should  prevent  secret  under- 
standings and  unfair  practices  and  secure  real  competition  be- 
tween the  companies  into  which  these  trusts  had  resolved  them- 
selves. To  accomplish  this  purpose  Congress  has  enacted  the  two 
laws  here  outlined  by  Professor  Henry  R.  Seager :  (1915) 

The  principal  provisions  of  the  Trade  Commission  Act  are : 

(1)  A  Federal  Trade  Commission  of  five  members,  each  to 
serve  seven  years  at  an  annual  salary  of  $10,000,  is  created  to 
supersede  the  Bureau  of  Corporations. 

(2)  " Unfair  methods  of  competition  in  commerce  are  de- 
clared unlawful." 


498  READINGS  IN  CIVIL  GOVERNMENT 

(3)  Prevention  of  such  methods  is  made  a  chief  task  of  the 
Trade  Commission,  which  is  empowered,  when  convinced  that 
unfair  methods  are  being  used,  and  "that  a  proceeding  by  it 
in  respect  thereof  would  be  in  the  interest  of  the  public,"  to 
serve  a  complaint,  hold  a  hearing,  and  order  their  discontinu- 
ance.   If  this  order  be  not  complied  with,  the  Commission  has 
power  to  appeal  to  a  circuit  court  of  appeals  for  an  injunc- 
tion.   This  court  reviews  the  case,  limited  as  regards  questions 
of  fact  by  the  provision  that  "the  findings  of  the  commission 
as  to  the  facts,  if  supported  by  testimony,  shall  be  conclusive." 

(4)  The  Commission  is  given  power  to  investigate  corpora- 
tions engaged  in  interstate  commerce,  other  than  banks  and 
common  carriers. 

(5)  It  may  require  from  them  annual  or  special  reports  and 
other  information. 

(6)  On  its  own  motion,  or  at  the  request  of  the  attorney 
general,  it  may  investigate  the  manner  in  which  decrees  af- 
fecting industrial  combinations  are  being  carried  out,  and 
make  public  its  findings,  if  it  deems  this  wise. 

(7)  It  may  investigate  any  alleged  violation  of  the  anti- 
trust acts  upon  the  direction  of  the  President  or  either  house 
of  Congress. 

(8)  On  the  application  of  the  attorney-general,  it  is  re- 
quired to  investigate  practices  or  arrangements  not  in  con- 
formity with  the  anti-trust  acts,  and  to  recommend  readjust- 
ments which  will  bring  about  such  conformity. 

(9)  It  is  to  make  annual  and  other  reports,  holding  invio- 
late, however,  trade  secrets  and  the  names  of  customers. 

(10)  It  is  to  classify  corporations  and  make  rules  and  regu- 
lations for  the  carrying  out  of  the  act. 

(11)  It  is  to  investigate  trade  relations  with  foreign  coun- 
tries. 

(12)  On  the  request  of  a  federal  court,  it  is  to  act  as  mas- 
ter in  chancery  in  advising  as  to  the  form  which  decrees  of  the 
court  relating  to  industrial  combinations  should  take,  the  ac- 
ceptance of  such  advice  being,  of  course,  discretionary  on  the 
part  of  the  court  asking  for  it. 


KEGULATION  OF  COMMERCE  499 

(13)  To  accomplish  these  purposes  the  Commission  is  given 
full  authority  to  secure  by  subpoena  all  necessary  information, 
documents,  testimony,  etc.,  the  penalty  for  failure  to  supply 
information  or  for  destroying  records  being  fines  of  from 
$1,000  to  $5,000,  and  for  delay  in  supplying  information  after 
thirty  days '  notice,  $100  a  day  for  each  day  that  the  informa- 
tion is  withheld. 

(14)  Special  penalties  are  provided  for  employees  of  the 
Commission  who  are  guilty  of  giving  out  unauthorized  infor- 
mation. 

The  dominant  note  of  this  measure,  therefore,  is  prevention 
rather  than  punishment.  The  Trade  Commission  is  to  inves- 
tigate and,  by  its  own  reports  and  the  reports  required  from 
the  industrial  combinations  under  its  jurisdiction,  secure  the 
publicity  which  many  students  of  the  problem  believe  will  by 
itself  put  an  end  to  dubious  and  unlawful  practices.  It  is  to 
co-operate  with  the  attorney-general  and  the  courts  in  securing 
and  maintaining  compliance  with  the  requirements  of  the  law. 
On  its  own  initiative  it  is  to  determine  when  unfair  methods 
are  being  used,  and  order  their  discontinuance.  To  make 
clear  that  this  part  of  its  work  is  preventive  rather  than  puni- 
tive, the  injunction  is  relied  upon  as  the  sole  means  of  en- 
forcing orders  of  penalties  in  cases  where  its  orders  are  dis- 
regarded and  the  offenders  are  adjudged  guilty  of  contempt. 

The  Clayton  Act — "an  act  to  supplement  existing  laws 
against  unlawful  restraints  and  monopolies  and  for  other  pur- 
poses"— is,  by  contrast,  a  penal  measure.  Made  up  as  it  is  of 
material  drawn  from  four  or  five  bills  that  were  at  one  time 
under  consideration  in  different  committees  of  Congress,  it 
lacks  the  simplicity  and  unity  of  the  Trade  Commission  Act. 
Its  principal  provisions  are: 

(1)  Price  discriminations  in  connection  with  interstate  com- 
merce are  declared  to  be  unlawful,  "where  the  effect  of  such 
discrimination  may  be  to  substantially  lessen  competition  or 
tend  to  create  a  monopoly. ' '  Provisos  permit  differences  based 
on  grade,  quality,  or  the  quantity  sold,  on  the  cost  of  selling 
or  transportation,  or  when  "made  in  good  faith  to  meet  com- 


500  READINGS  IN  CIVIL  GOVERNMENT 

petition."  Also,  the  prohibition  is  declared  not  to  prevent  the 
selection  of  customers  "in  bona  fide  transactions,  and  not  in 
restraint  of  trade." 

(2)  Exclusive    selling    or    leasing    contracts,    whether    of 
patented  or  unpatented  articles,  whose  effect  may  be  to  ' '  sub- 
stantially lessen  competition  or  tend  to  create  a  monopoly" 
are  also  declared  unlawful. 

(3)  Damages  due  to  acts  in  violation  of  these  prohibitions, 
as  well  as  the  other  prohibitions  of  the  anti-trust  acts,  may  be 
sued  for  and  recovered  threefold. 

(4)  Final  judgments  or  decrees  in  government  suits  under 
the  anti-trust  acts  are  made,  under  certain  limitations,  prima 
facie  evidence  in  private  suits,  exception  being  made  of  con- 
sent judgments  or  decrees. 

(5)  It  is  declared  "that  the  labor  of  a  human  being  is  not 
a  commodity  or  article  of  commerce"  and  that 

nothing  contained  in  the  anti-trust  laws  shall  be  construed  to  for- 
bid the  existence  and  operation  of  labor,  agricultural  or  horti- 
cultural organizations  instituted  for  the  purposes  of  mutual  help, 
and  not  having  capital  stock  or  conducted  for  profit,  (sic}  or  to 
forbid  or  restrain  the  individual  members  of  such  organizations 
from  lawfully  carrying  out  the  legitimate  objects  thereof;  nor 
shall  such  organizations  or  the  members  thereof  be  held  or  con- 
strued to  be  illegal  combinations  or  conspiracies  in  restraint  of 
trade  under  the  anti-trust  laws. 

(6)  The  acquisition  of  stock  in  one  corporation  by  another, 
or  the  combination  of  two  or  more  corporations  through  stock- 
ownership,  where  the  effect  "may  be  substantially  to  lessen 
competition     ...    to  restrain     .     .     .     commerce     .     .     . 
or  tend  to  create  a  monopoly,"  is  prohibited.    Provisos  limit 
the  application  of  this  regulation  in  the  case  of  common  car- 
riers developing  branch  lines,  of  subsidiary  companies,  etc., 
and  exclude  existing  corporate  relations. 

(7)  Somewhat  complicated  limitations  are  imposed  upon  in- 
terlocking directorates.    The  provision  relating  to  industrial 
combinations  prohibits  any  person,  after  two  years  from  the 
approval  of  the  act,  from  being  a  director  in  two  or  more  cor- 
porations, any  one  of  which  has  a  capital  of  a  million  dollars 


REGULATION  OF  COMMERCE  501 

or  more,  provided  that  the  business  carried  on  by  such  cor- 
porations be  of  such  a  nature  ' '  that  the  elimination  of  compe- 
tition by  agreement  between  them  would  constitute  a  viola- 
tion" of  the  anti-trust  laws. 

(8)  The  same  procedure  created  for  the  enforcement  of  the 
unfair-competition  provision  of  the  Trade  Commission  Act 
is  prescribed  for  the  enforcement  of  the  above  provisions  of 
the  Clayton  Act,  it  being  clearly  indicated  that  Congress  looks 
to  the  Trade  Commission  to  serve  the  same  purpose  in  con- 
nection with  industrial  combinations  as  does  the  Interstate 
Commerce  Commission  in  connection  with  common  carriers, 
and  the  Federal  Reserve  Board  in  connection  with  banks. 

(9)  Violations  of  any  of  the  penal  provisions  of  the  anti- 
trust acts  by  a  corporation  is  declared  to  be  also  violation  by 
the  individual  directors,  officers  or  agents  who  have  authorized, 
ordered  or  done  the  acts  constituting  such  violation,  render- 
ing them  liable  to  the  familiar  penalties  of  the  Sherman  Act. 

It  is  too  early  to  judge  of  the  extent  to  which  this  enumera- 
tion of  acts  which  henceforth  shall  be  unlawful  in  the  Clayton 
Act  has  changed  the  existing  law.  It  will  be  observed  that  in 
specifying  offences  great  care  has  been  taken  to  exclude  acts 
of  the  same  kind  which  are  free  from  the  objection  of  tending 
to  restrain  trade  or  create  monopoly.  It  thus  still  rests  with 
the  courts,  aided  by  the  Trade  Commission,  to  determine  when 
price  discriminations,  exclusive  contracts,  interlocking  direc- 
torates, etc.,  are  in  violation  of  the  anti-trust  acts.  That  such 
acts  were  already  regarded  under  certain  circumstances  as 
involving  violation  of  the  Sherman  Law  is  well  known  to  every 
student  of  the  decisions.  The  legislation  has,  therefore,  merely 
enumerated  as  unlawful  certain  lines  of  conduct  which,  even 
before  the  act  was  passed,  had  come  to  be  viewed  as  possible 
evidences  of  a  criminal  combination.  Such  enumeration  serves 
at  least  one  useful  purpose.  It  makes  clearer  the  obligation 
resting  on  business  men  to  avoid  entanglements  which  may 
lead  them  into  violations  of  the  law.  That  they  may  not  dis- 
regard this  obligation,  the  expert  services  of  the  Trade  Com- 
mission are  at  the  same  time  provided.  The  net  results  should 


502  READINGS  IN  CIVIL  GOVERNMENT 

be  fuller  compliance  with  the  law  and  less  occasion  for  prose- 
cutions under  it. 

ADDITIONAL  READINGS 

1 — The  Interstate  Commerce  Clause,  Pierce,  F.,  Federal  Usur- 
pation, 369-305. 

2 — The  Regulation  of  Railroad  Rates,  Knapp,  M.  A.,  Pro- 
ceedings of  the  American  Political  Science  Association, 
I,  199-206. 

3 — Federal  Usurpation,  Williams,  J.  S.,  Annals  of  the  Ameri- 
can Academy  of  Political  and  Social  Science,  XXXII, 
185-211. 

4 — Governmental  Interference  with  Industrial  Combinations, 
Whitney,  E.  B.,  Proceedings  of  the  American  Political 
Science  Association,  I.  184-99. 


CHAPTER  XXII 
ELECTIONS 

95.   THE  CITY  THE  BATTLE-GROUND  OF  DEMOCRACY. 

Two  underlying  causes  of  corrupt  elections  and  misgovernment, 
the  political  boss  and  the  special  privilege  seeker,  are  thus  discussed 
by  Mr.  Horace  E.  Deming: 

The  political  forces  that  resist  every  advance  toward  the 
attainment  of  government  accountable  to  the  people  governed 
and  make  for  the  establishment  of  a  government  in  the  inter- 
est of  a  privileged  few  are  nowhere  so  active  or  so  powerful 
as  in  the  city.  The  city  itself  creates  the  economic  conditions 
that  give  these  forces  full  play.  The  urgent  needs  of  the 
city's  community-life  for  water,  transportation,  light,  tele- 
phonic communication,  and  similar  communal  services  can 
only  be  met  through  governmental  action.  The  men  engaged 
in  supplying  these  services  are  necessarily  in  the  most  inti- 
mate and  constant  contact  with  the  city  government,  while  the 
business  interests  and  occupations  of  the  vast  majority  of  men 
bring  them  but  rarely  if  at  all  into  conscious  relation  with  the 
government  of  the  city  in  which  they  live. 

On  the  one  hand,  the  satisfaction  of  urgent  community- 
needs  has  created  a  class  of  special  businesses  which  are  made 
profitable  by  influencing  governmental  action;  on  the  other, 
is  the  great  mass  of  the  citizens  to  whom  any  special  effort  to 
reach  or  influence  a  city  official  involves  business  loss.  The 
enjoyers  of  special  privileges  have  been  constantly  watchful 
of  the  conduct  of  city  government  and  constantly  active  in 
securing  the  election  and  appointment  of  public  officials  favor- 
able to  their  business  plans.  The  general  body  of  the  citizens 

503 


504          READINGS  IN  CIVIL  GOVERNMENT 

secure  under  the  constitution  in  their  personal  and  property 
rights  and  absorbed  in  business  callings  and  occupations  that 
neither  need  special  assistance  nor  invite  any  interference 
from  the  city  government,  have  paid,  at  most,  only  so  much  at- 
tention to  it  as  voting  for  their  regular  party  candidates  on 
election  day  might  require  and,  perhaps,  at  times  contributing 
to  their  party's  treasury. 

The  exploiters  of  the  need  for  transit,  light,  and  other  pub- 
lic services  have  found  in  each  city  a  natural  ally  in  every 
man  who  desired  some  selfish  personal  advantage  from  its  gov- 
ernment. The  domination  of  the  state  legislature  over  mu- 
nicipal affairs  brings  to  the  state  capital  the  franchise  seekers 
from  every  city,  there  to  work  in  congenial  and  unwholesome 
fellowship  with  every  other  special  interest  in  quest  of  legis- 
lative largesses.  Neither  is  the  hunter  of  governmental 
bounty  unknown  in  Washington.  His  insidious  influence  has 
been  felt  in  every  department  of  our  government.  The  same 
cause,  hunger  for  the  enormously  valuable  special  privileges 
at  the  disposal  of  government  under  modern  economic  condi- 
tions, has  been  active  in  nation,  state,  and  city. 

The  privilege-seeker  has  pervaded  our  political  life.  For 
his  own  profit  he  has  wilfully  befouled  the  sources  of  political 
power.  Politics,  which  should  offer  a  career  inspiring  to  the 
noblest  thoughts  and  calling  for  the  most  patriotic  efforts  of 
which  man  is  capable,  he  has,  so  far  as  he  could,  transformed 
into  a  series  of  sordid  transactions  between  those  who  buy  and 
those  who  sell  governmental  action.  His  success  has  depended 
upon  hiding  the  methods  by  which  he  has  gained  his  ends. 
All  the  forms  through  which  the  voters  are  accustomed  to  ex- 
ercise their  rights  have  been  strictly  observed.  Untroubled 
by  conscientious  scruples,  consistently  non-partisan,  he  has 
welcomed  the  support  of  every  party  and  been  prompt  to  re- 
ward the  aid  of  any  political  manager.  Step  by  step  he 
gained  control  of  the  party  machinery.  His  fellow  citizens 
have  been  in  profound  ignorance  that  he  named  all  the  candi- 
dates among  whom  they  made  their  futile  choice  on  election 
day. 


ELECTIONS  505 

For  a  long  time  our  real  government  had  not  been  the  one 
described  in  constitution  or  statute ;  our  electoral  methods  had 
long  ceased  to  furnish  a  genuine  opportunity  for  the  expres- 
sion of  the  popular  will;  the  actual  government  had  passed 
into  the  control  of  an  elaborate  feudal  system  with  its  lords 
and  overlords,  each  with  his  retinue  of  followers  and  depend- 
ents, all  supported  at  the  expense  of  the  public ;  yet  the  peo- 
ple were  quite  unaware  that  the  ancient  methods  upon  which 
they  relied  in  order  to  have  an  effective  participation  in  the 
conduct  of  the  government  and  to  secure  public  officials  re- 
sponsible to  them  and  actively  concerned  to  protect  the  com- 
mon interest  and  promote  the  common  good  were  rapidly  be- 
coming mere  shams. 

In  every  department  of  human  affairs  requiring  the  exhibi- 
tion of  skill,  the  expert,  sooner  or  later,  inevitably  becomes 
prominent.  There  was  an  insistent  demand  for  the  expert  of 
every  grade  from  the  highest  to  the  lowest  in  an  undertaking 
involving  so  much  knowledge  of  human  nature,  such  mastery 
of  detail,  so  much  persistence  of  effort,  and  such  adroitness 
as  the  conduct  of  government  by  purchase  under  the  guise  of 
the  government  by  the  people.  In  response  to  this  demand 
came  the  "Boss,"  the  expert  who  attended  to  the  infinite  de- 
tails and  complications  of  party  management  and  organiza- 
tion and  supplied  the  public  officials — and  thereby  the  kind  of 
government — the  privilege-seeker  desired. 

The  boss  was  a  distinct  advantage  to  the  class  that  throve 
by  government  favors.  His  real  occupation  was  unknown  to 
the  people,  and  if  at  first  they  did  not  welcome  his  appearance 
they  thought  him  nevertheless  the  natural  and  perfectly  legiti- 
mate outcome  of  their  accustomed  political  methods,  a  leader 
whom  they  could  displace  when  he  lost  their  approval.  They 
did  not  realize  his  ominous  significance.  Gradually  it  began 
to  dawn  upon  them  that  they  could  neither  select  nor  elect 
him ;  that  he  was  not  a  person,  but  a  system.  The  individual 
might  disappear  or  be  displaced,  but  the  boss  always  re- 
mained. Not  until  his  sinister  figure  was  appearing  in  city 
after  city  and  state  after  state  and  even  in  the  United  States 


506          READINGS  IN  CIVIL  GOVERNMENT 

senate,  not  until  there  was  overwhelming  evidence  of  a  hier- 
archy of  bosses,  big  and  little,  did  there  begin  to  be  a  general 
awakening  of  the  people  to  the  existence  of  a  system  wholly 
mercenary,  reared  upon  the  greed  for  special  privileges  and 
the  sale  of  such  privilege  by  the  skilful  manipulators  of  the 
political  party-organizations. 

The  issue  has  now  been  fairly  made  up  between  Special 
Privilege  and  Democracy,  between  government  by  purchase 
and  government  by  the  people.  The  contest  will  be  a  long 
one.  It  has  already  taken  many  forms  and  will  assume  count- 
less more.  Its  crucial  battles  will  be  in  the  city,  for  there  the 
struggle  between  privilege  and  the  common  good  is  most  con- 
stant and  most  intense.  It  is  in  the  city  that  the  victory  of 
the  one  side  or  the  other  will  be  most  far  reaching  in  its  con- 
sequences, for  nothing  is  more  certain  than  that  the  over- 
whelming majority  of  the  inhabitants  of  the  United  States 
will  be  city-dwellers.  This  is  already  true  of  the  Eastern 
states.  The  triumph  of  privilege  in  the  city  will  mean,  there- 
fore, that  the  vast  majority  of  the  American  people  have  been 
made  the  subjects  of  government  by  purchase.  And  it  will 
mean  much  more.  The  increasing  domination  in  state  after 
state  of  the  city  "machines"  over  the  state  organization  of 
political  parties  foreshadows  the  outcome  in  state  and  in 
nation. 

If  the  fight  of  the  people  to  put  down  government  by  pur- 
chase masquerading  in  the  forms  of  democracy  can  be  won  in 
the  city  and  a  government  accountable  to  the  people  set  up  in 
its  stead,  democracy  will  triumph  in  state  and  nation.  If  the 
people  lose  their  fight  in  the  city,  they  will  lose  it  in  state  and 
nation.  The  city  is  the  battle-ground  of  democracy. 

96.   REFORM  OF  ELECTION  LAWS. 

During  the  last  twenty-five  years  the  plan  of  nominating  candi- 
dates by  direct  primary  election  has  held  a  large  place  in  the  minds 
of  reformers  desirous  of  freeing  elections  from  boss  control.  Never- 
theless primary  elections,  though  tried  in  a  number  of  States,  have 
not  proved  entirely  satisfactory,  there  being  a  number  of  points  in 


ELECTIONS  507 

regard  to  the  method  of  conducting  the  election  which  still  remain 
to  be  settled.1  But  in  the  following  selection,  Professor  Merriam 
points  out  that,  aside  from  the  imperfections  in  the  methods  em- 
ployed, primary  elections  cannot  be  relied  upon  solely  to  eliminate 
the  boss  and  restore  popular  control: 

A  study  of  primary  election  legislation  shows  that  the  de- 
sired results  cannot  be  obtained  until  other  and  important 
political  changes  have  been  made.  Unless  primary  laws  are 
accompanied  or  followed  by  other  developments  of  the  politi- 
cal situation,  comparatively  little  will  result  from  the  move- 
ment. No  friend  of  direct  nomination  should  indulge  the 
pleasant  dream  that  the  adoption  of  a  law  providing  for  such 
a  system  will,  of  itself,  act  as  a  cure  for  all  the  present-day 
party  evils.  Disillusionment  and  discouragement  are  certain 
to  follow  in  the  wake  of  any  campaign  conducted  on  such  a 
theory.  It  is  necessary  to  understand  that  the  political  con- 
ditions are  far  too  serious  and  far  too  complicated  to  be  cured 
by  so  simple  a  specific. 

In  the  first  place,  it  is  not  likely  that  the  direct  nominating 
system  will  achieve  its  full  results  until  the  number  of  elec- 
tive officers  is  materially  reduced.  Where  thirty  or  forty 
offices  are  to-be  filled  at  one  primary,  it  is  not  probable  that 
an  intelligent  choice  will  be  made  from  the  great  number  of 
candidates  presented.  The  variety  of  qualifications  required 
for  the  several  offices,  the  multiplicity  of  candidates  clamor- 
ing for  recognition,  the  obscurity  of  many  of  these  candidates, 
the  possibility  of  "deals"  and  "slates,"  make  the  likelihood 
of  proper  selection  somewhat  remote.  It  is  not  probable  the 
result  will  be  any  worse  than  that  obtained  under  the  con- 
vention system,  but,  on  the  other  hand,  it  is  not  likely  to  be 
very  much  better  in  the  case  of  the  minor  offices.  .  .  . 

This  simplification  of  the  machinery  of  government  may 
most  easily  be  made  by  eliminating  administrative  offices  from 
the  elective  list.  There  can  be  no  good  reason  why  such  offi- 
cers as  auditor,  engineer,  and  surveyor,  should  be  elective. 
An  auditor  must  be  accurate  and  honest,  and  there  is  no  such 

i  See  above,  page  378. 


508          READINGS  IN  CIVIL  GOVERNMENT 

thing  as  Republican  auditing  or  Democratic  auditing.  Nor 
is  there  a  Republican  way,  or  a  Democratic  way,  or  a  Prohi- 
bitionist way  of  administering  the  office  of  engineer.  Cer- 
tainly there  can  be  no  form  of  surveying  that  could  be  char- 
acterized as  Socialistic  or  Democratic  or  Republican. 

The  true  principle  is  that  the  people  should  choose  all  offi- 
cers concerned  with  the  formulation  of  public  policies.  They 
need  not  choose  men  engaged  in  the  carrying  out  of  policies. 
Policy-framing  or  legislation  is  a  matter  upon  which  there 
may  be  differences  of  opinion,  and  men  intrusted  with  the 
work  of  drawing  up  such  plans  must  be  elected  by,  and  be 
immediately  responsible  to,  the  people.  Regarding  the  execu- 
tion of  policies  once  enacted  into  law,  there  is  less  room  for 
difference  of  opinion.  The  making  of  law  is  partisan,  but  the 
enforcement  of  law  should  be  non-partisan.  Laws  should  not 
be  administered  in  a  partisan  way,  but  efficiently  and  justly. 
Administration  requires  technical  skill,  and  partisanship  is 
destructive  to  its  best  development. 

If  any  administrative  offices  are  to  be  selected  by  popular 
vote,  the  number  should  be  confined  to  the  chief  executive 
officers,  such  as  the  mayor  and  the  governor.  If  these  officers 
are  chosen  by  the  people  and  given  the  duty  of  selecting  and 
supervising  other  public  servants  on  the  administrative  staff, 
the  result  is  certain  to  be  a  higher  degree  of  popular  control 
than  is  now  generally  secured.  This  principle  has  been  es- 
tablished in  the  federal  government  from  the  beginning,  is 
now  being  adopted  in  our  municipal  governments,  and  few 
new  elective  offices  are  being  provided  in  state  and  county 
government.  We  are  coming  to  realize  that  what  is  needed  is 
popular  control  over  policies,  with  non-partisan,  skilled,  and 
permanent  administration  of  these  policies.  While  in  London 
in  1907,  I  was  greatly  interested  to  see  that,  although  the 
Moderate  party  in  the  London  County  Council  had  just  won 
a  sweeping  victory,  which  placed  it  in  power  for  the  first  time 
in  sixteen  years,  no  changes  were  made  in  the  administration. 
The  offices  and  committees  of  the  Council  were  reorganized 
to  give  the  victorious  party  the  majority  necessary  to  execute 


ELECTIONS  509 

its  policies,  but  the  public  servants  whose  duty  it  is  to  execute 
the  policy  of  the  Council  remained  undisturbed. 

Such  a  change  may  be  denounced  as  undemocratic  in  spirit 
and  tendency,  but  on  second  thought  it  will  be  seen  that  in- 
stead of  weakening  popular  control  over  government  the  re- 
sult will  be  to  strengthen  that  control.  A  system  that  imposes 
upon  the  electorate  the  choice  of  a  mass  of  officials  strengthens 
the  hands  of  partisan  or  private  interests  at  the  expense  of 
the  public.  With  a  smaller  number  of  elective  officers,  the  re- 
sults obtained  under  the  direct  primary  system  would  be  far 
more  satisfactory  than  they  can  be  under  existing  conditions. 
Public  attention  could  be  focused  upon  a  few  offices  and  a  few 
candidates  with  better  prospects  than  at  present  for  the  elim- 
ination of  the  undesirable  and  the  survival  of  the  fittest.  Un- 
til this  is  brought  about,  the  success  of  the  direct  nominating 
system  must  be  seriously  menaced. 

Another  essential  change  is  the  return  to  the  original  form 
of  the  Australian  ballot.  The  party  emblem,  the  party  circle, 
and  the  party  column  have  nothing  to  do  with  the  Australian 
ballot,  and  were  engrafted  on  the  system  by  American  legisla- 
tures. In  adopting  the  system,  secrecy  of  the  ballot  was  se- 
cured, but  the  party  obtained  the  advantage  of  arranging 
party  candidates  in  columns  and  permitting  the  voter  to  select 
a  list  of  candidates  by  marking  in  the  party  circle.  This  me- 
chanical arrangement  places  a  premium  upon  undiscriminat- 
ing  voting,  and  often  results  in  the  election  of  unworthy  and 
unfit  candidates  by  sheer  advantage  of  position  upon  the  bal- 
lot. If  the  head  of  the  ticket  is  elected,  the  others  are  likely 
to  be  carried  along  with  the  leader,  regardless  of  their  own 
merits.  Fortunately  this  plan  has  not  been  applied  to  the 
conduct  of  nominating  elections,  where  voting  an  organization 
slate  with  one  mark  might  have  worked  great  damage ;  but  the 
fact  that  this  practice  prevails  in  the  regular  elections  throws 
its  shadow  back  over  the  primaries.  The  knowledge  that  can- 
didates, when  nominated,  will  be  placed  under  the  protection 
of  the  emblem  or  the  circle  makes  the  party,  especially  in  dis- 
tricts where  it  is  strongly  in  the  majority,  less  careful  in  its 


510  READINGS  IN  CIVIL  GOVERNMENT 

choice  of  candidates  than  would  otherwise  be  the  case.  It  is 
only  human  nature  to  be  less  studious  of  the  public  wishes  in 
a  situation  where  a  nomination  is  equivalent  to  an  election, 
and  where  defeat  even  of  the  unworthy  is  a  remote  possibility. 
Ballot  reform  is,  therefore,  a  necessary  accompaniment  of 
primary  reform.  The  ballot  in  the  regular  election  should  be 
made  up  in  the  same  form  as  the  ballot  in  the  primary  elec- 
tion, with  the  party  designation  placed  after  the  name  of  the 
candidate. 

Another  requisite  to  the  complete  success  of  the  direct  nom- 
inating plan  is  the  further  extension  and  enforcement  of  the 
merit  system.  As  long  as  an  army  of  officials  can  be  thrown 
into  the  field  in  support  of  a  particular  "slate,"  it  will  be 
difficult  for  the  candidate,  not  so  supported,  to  succeed.  The 
odds  are  too  greatly  in  favor  of  the  regular  army  against 
the  unorganized  and  undisciplined  volunteers.  Occasionally 
victory  may  perch  on  the  banners  of  the  straggling  group  of 
reformers  and  "antis,"  but  habitually  will  rest  upon  the  side 
of  the  well-disciplined  army  of  office-holders.  The  honest  and 
intelligent  application  of  the  merit  principle  to  administrative 
appointments  reduces  the  number  of  workers  under  the  con- 
trol of  a  faction,  and  makes  the  support  of  the  " slate'*  far 
less  formidable.  If  the  group  in  power  centers  around  some 
principle  or  policy,  it  will  continue  to  be  powerful  and  effec- 
tive in  the  primaries,  even  under  the  merit  system ;  but  if  the 
chief  element  of  cohesion  was  public  office,  it  will  be  far  less 
vigorous  than  before.  Patronage  is  not  only  the  force  that 
holds  an  organization  together,  but  it  is  the  strongest  single 
element,  and  no  practical  politician  is  ever  guilty  of  despising 
the  power  of  appointing  men  to,  and  removing  them  from, 
office.  There  are,  of  course,  many  exceptions,  but  the  general 
practice  is  for  the  appointing  power  to  control  the  political 
activity  of  the  appointee.  When  the  office  is  obtained  by 
merit,  however,  and  not  by  favor,  this  sense  of  obligation  on 
the  part  of  the  officer  and  of  power  on  the  part  of  the  party 
ruler  ceases.  Hence  the  mobilization  of  an  army  for  effective 
use  in  a  primary  campaign  becomes  far  more  difficult,  and  the 


ELECTIONS  511 

opportunities  for  success  on  the  part  of  the  opposition  cor- 
respondingly greater.  To  the  extent  that  the  merit  system  is 
not  rigidly  carried  out,  the  effects,  just  indicated,  do  not  fol- 
low. In  any  event,  it  is  not  to  be  presumed  that  civil  service 
reform  is  a  panacea.  It  is  merely  a  palliative.  It  will  ma- 
terially help,  but  cannot  be  relied  upon  to  accomplish  a  com- 
plete cure  for  our  political  ills.  The  merit  system  merely 
abolishes  the  feudal  tenure  under  which  many  officers  now 
hold,  and  the  obligations  of  service  incident  to  that  relation- 
ship. It  will  remove  one  handicap  to  an  even  race  between 
candidates  for  a  nomination. 

It  is  a  serious  question  whether  public  appropriation  should 
not  be  made  to  defray  a  part  of  the  expenses  of  candidates  in 
primaries.  Already  in  most  states  all  of  the  cost  of  the  pri- 
mary election  itself  is  paid  from  the  public  treasury.  The 
payment  of  election  judges,  the  printing  and  distribution  of 
ballots  and  booths,  the  rent  of  polling-places,  and  other  simi- 
lar expenditures  incident  to  holding  a  primary  are  usually 
met  from  the  public  funds,  although  at  the  outset  all  such 
charges  were  covered  by  party  assessments  upon  candidates. 
The  government  might  also  undertake  to  place  in  the  hands  of 
every  voter  in  the  given  district  a  brief  statement  regarding 
the  record  and  platform  of  each  candidate.  Such  statements, 
prepared  by  the  candidates'  friends  or  critics,  might  be  bound 
together  and  sent  to  every  member  of  the  party  in  the  con- 
stituency interested.  The  expense  would  not  be  great,  while 
the  educational  value  to  the  public  would  warrant  an  appro- 
priation for  the  purpose.  At  any  rate,  the  government  might 
defray  the  cost  of  distributing  such  material.  It  might  also 
be  possible  to  allow  candidates  the  use  of  certain  public  build- 
ings, such  as  schoolhouses,  or  perhaps  to  secure  other  meeting- 
places  and  permit  their  use  by  the  several  contestants.  There 
is  serious  danger  that  under  the  present  system  the  man  with- 
out large  means  may  find  it  almost  impossible  to  enter  the 
primary  lists,  or  that  he  may  incur  obligations  of  a  character 
that  may  interfere  with  his  usefulness  to  the  public.  The 
candidate  should  not  be  subjected  to  the  temptation  of  mort- 


512          READINGS  IN  CIVIL  GOVERNMENT 

gaging  his  future  political  conduct  for  the  sake  of  securing 
the  necessary  campaign  fund. 

After  all  such  remedies  have  been  considered,  it  is  clear 
that  no  readjustment  of  the  political  machinery  can  be  relied 
upon  to  produce  ideal  political  conditions.  It  is  a  common 
American  fallacy  to  conclude  that  when  a  constitutional 
amendment,  or  a  statute,  or  a  charter  is  secured  the  victory 
has  been  won  and  that  the  patriotic  citizen  may  go  back  to 
the  neglected  plow.  It  is  easier  to  secure  ten  men  to  fight 
desperately  for  good  legislation  than  one  who  will  tight  stead- 
ily and  consistently  for  efficient  administration.  Every  stu- 
dent of  politics  knows,  however,  that  there  is  no  automatic 
device  that  will  secure  smoothly  running  self-government 
while  the  people  sleep.  Perpetual  motion  and  automatic  de- 
mocracy are  equally  visionary  and  impossible.  The  governor 
gauges  the  pressure  of  public  interest  and  regulates  his  con- 
duct accordingly.  The  level  of  politics  is  in  the  long  run  the 
level  of  public  interest  in  men  and  affairs  political.  Under 
any  system  the  largest  group  of  interested  and  active  citizens 
will  determine  public  policies,  and  will  select  the  persons  to 
formulate  and  administer  them.  The  uninterested,  or  the 
spasmodically  interested,  the  inactive  and  the  irregularly  ac- 
tive, will  be  the  governed,  not  the  governors. 

Neither  primary  legislation  nor  any  other  type  of  legisla- 
tion can  change  this  situation.  We  may  make  it  easier  for  the 
people  to  express  their  will ;  we  may  simplify  the  government 
and  render  it  more  clearly  and  directly  responsible,  but  this 
alone  will  not  insure  the  desired  result.  We  may  remove  ob- 
structions and  hindrances  and  facilitate  popular  control,  but 
we  cannot  do  more. 

The  direct  primary  system  is,  therefore,  to  be  regarded  as 
an  opportunity,  not  as  a  result.  It  signifies  the  opening  of  a 
broad  avenue  of  approach  to  democracy  in  party  affairs,  but 
not  the  attainment  of  the  goal. 


ELECTIONS  513 

97.   THE  CORRUPT  PRACTICES  LAW  OF  CONNECTICUT. 

One  method  of  purifying  elections  and  securing  good  government 
is  to  enact  rigid  laws  prohibiting  bribery  and  other  corrupt  prac- 
tices and  prescribing  the  amount  of  and  purposes  for  which  money 
may  be  spent  in  connection  with  elections.  The  first  law  of  this 
character  adopted  by  any  of  the  States  was  that  of  New  York, 
passed  in  1890.  Since  then  at  least  twenty  States  have  adopted 
more  or  less  similar  laws.  The  following  extracts  from  the  law  of 
Connecticut  enacted  in  1909  sufficiently  illustrate  the  character  of 
this  legislation: 

Sec.  2.  The  term  "political  committee"  shall  include  every 
committee  or  combination  of  three  or  more  persons  to  aid  or 
promote  the  success  or  defeat  of  any  political  party  or  princi- 
ple in  any  election  or  to  aid  or  to  take  part  in  the  nomination 
or  election  of  any  candidate  for  public  office.  The  term 
"treasurer"  shall  include  all  persons  appointed  by  any  politi- 
cal committee  to  receive  or  disburse  moneys  to  aid  or  promote 
the  success  or  defeat  of  any  such  party,  principle,  or  candi- 
date. The  term  "political  agent"  shall  include  all  persons 
appointed  by  any  candidate,  before  any  such  election,  caucus, 
or  primary  election,  to  assist  him  in  his  candidacy.  No  per- 
son shall  act  as  any  such  treasurer  or  political  agent  unless, 
after  his  appointment  and  before  the  caucus,  primary,  or 
election  for  which  he  is  appointed,  a  writing  designating  him 
as  such  treasurer  or  political  agent  shall  be  filed  with  the  sec- 
retary of  the  state.  .  .  . 

Sec.  3.  Any  person  nominated  as  a  candidate  for  public 
office,  or  a  candidate  for  such  nomination,  may  make  a  volun- 
tary payment  of  money  to  any  treasurer  or  political  agent  for 
any  of  the  purposes  permitted  by  this  act ;  provided,  however, 
that  no  person  other  than  such  a  candidate  shall,  to  promote 
the  success  or  defeat  of  any  political  party  or  principle,  or 
of  any  candidate  for  public  office,  or  of  any  candidate  for  any 
nomination,  within  six  months  prior  to  any  such  election,  make 
a  contribution  of  money  or  property,  or  incur  any  liability,  or 
promise  any  valuable  thing  to  any  person  other  than  to  a 
treasurer  or  political  agent.  Nothing  contained  in  this  act 

33 


514          READINGS  IN  CIVIL  GOVERNMENT 

shall  limit  or  affect  the  right  of  any  person  to  expend  money 
for  proper  legal  expenses  in  maintaining  or  contesting  the 
results  of  any  election. 

Sec.  4.  No  person  other  than  a  treasurer  or  political  agent 
shall  pay  any  of  the  expenses  of  any  election,  caucus,  or  pri- 
mary election,  except  that  a  candidate  may  pay  his  own  ex- 
penses for  postage,  telegrams,  telephoning,  stationery,  print- 
ing, the  advertising  in  or  distribution  of  newspapers  being 
excepted,  expressage,  and  traveling ;  but  the  provisions  of  this 
section  shall  not  apply  to  non-partisan  election  and  ante-elec- 
tion expenses  paid  out  of  the  public  moneys  of  the  state  or 
of  any  town,  city,  or  other  municipality.  No  contributions  or 
payments  or  favors  of  any  kind  shall  be  made  or  offered  by, 
or  solicited  from  any  private  corporation  or  any  judicial  offi- 
cer, except  judges  of  probate  and  justices  of  the  peace,  to  pro- 
mote the  success  or  defeat  of  any  candidate  for  public  office  or 
of  any  political  party  or  principle,  or  for  any  other  political 
purpose  whatever. 

Sec.  5.  It  shall  be  lawful  for  any  treasurer  or  political  agent, 
in  connection  with  any  election,  caucus,  or  primary  election, 
to  pay  the  following  expenses:  (a)  Of  hiring  public  halls  and 
music  for  political  meetings,  furnishing  music,  uniforms,  ban- 
ners, or  fireworks  for  political  clubs  or  public  parades,  and 
advertising  such  meetings  or  parades;  (b)  of  printing  and  cir- 
culating political  newspapers,  pamphlets,  and  books;  (c)  of 
printing  and  distributing  ballots  and  pasters;  (d)  of  renting 
rooms  to  be  used  by  political  committees;  (e)  of  compensating 
clerks  and  other  persons  employed  in  committee  rooms  and  at 
the  polls,  and  of  furnishing  reasonable  entertainment  to  such 
persons  necessarily  employed  in  committee  rooms  and  at  the 
polls,  and  to  members  of  political  committees  of  the  same 
political  party  to  which  such  political  agent  or  treasurer  shall 
belong;  provided,  however,  that  the  word  " entertainment" 
shall  not  be  construed  to  include  alcoholic  or  intoxicating  bev- 
erages; (f)  for  the  travel  of  political  agents,  committees,  and 
public  speakers  and  reasonable  compensation  to  public  speak- 
ers; (g)  of  necessary  postage,  telegrams,  telephoning,  print- 


ELECTIONS  515 

ing,  and  expense  charges;  (h)  of  preparing,  circulating,  and 
filing  petitions  for  nomination;  (i)  of  conveyance  of  electors 
to  the  polls.  No  treasurer,  candidate,  or  political  agent  shall 
incur  any  expense  or  liability  or  make  any  payment  for  any 
purpose  not  authorized  by  this  act,  and  every  liability  in- 
curred and  payment  made  shall  be  at  a  rate  which  is  proper 
and  reasonable  and  fairly  commensurate  with  the  service  ren- 
dered. 

Sec.  6.  Within  fifteen  days  after  any  such  election,  every 
treasurer  and  every  political  agent  shall  file  an  itemized 
sworn  statement  with  the  officer  with  whom  his  designation 
was  filed  as  aforesaid,  which  statement  shall  include  the 
amount  of  money  or  property  in  each  case  received  or  prom- 
ised, the  name  of  the  person  from  whom  it  was  received  or  by 
whom  it  was  promised,  the  amount  of  every  expenditure  made 
or  liability  incurred,  and  the  name  of  the  person  to  whom 
such  expenditure  or  promise  was  made,  and  shall  clearly  state 
the  purpose  for  which  such  money  or  property  was  so  ex- 
pended or  promised,  separating  the  expenditures  for  caucuses, 
primaries,  and  elections.  If  any  money  or  property  has  been 
received  from  or  has  been  paid,  given,  or  promised  to  or  by 
any  person  who  was  a  candidate  for  any  office,  or  a  political 
treasurer,  the  title  of  the  office  which  said  person  holds  or  for 
which  he  was  a  candidate  shall  be  plainly  given  in  the  state- 
ment hereinbefore  provided  for.  Any  treasurer  or  political 
agent  who  shall  fail  to  file  such  statement  within  the  time  re- 
quired shall  be  fined  twenty-five  dollars  for  each  day  on  which 
he  is  in  default,  unless  he  shall  be  excused  by  the  court. 
Twenty  days  after  any  election  the  secretary  of  the  state  or 
the  town  clerk,  as  the  case  may  be,  shall  notify  the  proper 
prosecuting  officer  of  any  failure  on  the  part  of  any  treasurer 
or  political  agent  to  file  such  statement,  and  within  ten  days 
thereafter  such  prosecuting  officer  shall  proceed  to  prosecute 
for  such  offense.  .  .  . 

Sec.  9.  The  following  persons  shall  be  guilty  of  corrupt 
practices  and  shall  be  punished  in  accordance  with  the  pro- 
visions of  this  act:  (a)  Every  person  who  shall,  directly  or 


516  READINGS  IN  CIVIL  GOVERNMENT 

indirectly,  by  himself  or  by  another,  give  or  offer  or  promise 
to  any  person  any  money,  gift,  advantage,  preferment,  enter- 
tainment, aid,  emolument,  or  any  valuable  thing  whatever  for 
the  purpose  of  inducing  or  procuring  any  person  to  vote  or 
refrain  from  voting  for  or  against  any  person  or  for  or  against 
any  measure  at  any  election,  caucus,  convention,  primary  elec- 
tion, or  general  assembly;  (b)  every  person  who  shall,  directly 
or  indirectly,  receive,  accept,  request,  or  solicit  from  any  per- 
son, committee,  association,  organization  or  corporation,  any 
money,  gift,  advantage,  preferment,  aid,  emolument,  or  any 
valuable  thing  whatever,  for  the  purpose  of  inducing  or  pro- 
curing any  person  to  vote  or  refrain  from  voting  for  or  against 
any  person  or  for  or  against  any  measure  at  any  such 
election,  caucus,  primary  election,  or  general  assembly; 
(c)  every  person  who,  in  consideration  of  any  money, 
gift,  advantage,  preferment,  aid,  emolument,  or  any  valua- 
ble thing  whatever,  paid,  received,  accepted,  or  prom- 
ised to  the  advantage  of  himself  or  any  other  person,  shall 
vote  or  refrain  from  voting  for  or  against  any  person  or  for 
or  against  any  measure  at  any  such  election,  caucus,  or  pri- 
mary election;  (d)  every  person,  other  than  the  political  com- 
mittees known  as  the  national  congressional,  state,  town,  city, 
ward,  and  borough  committees,  who  shall  solicit  from  any  can- 
didate for  the  office  of  elector  of  president  and  vice-president 
of  the  United  States,  of  senator  of  the  United  States,  of  rep- 
resentative in  congress,  or  of  any  state,  county,  probate,  town, 
city,  ward,  borough,  or  school-  district  office,  any  money,  gift, 
contribution,  emolument,  or  other  valuable  thing  for  the  pur- 
pose of  using  the  same  for  the  support,  assistance,  benefit,  or 
expenses  of  any  club,  company,  or  organization,  or  for  the 
purpose  of  defraying  the  cost  or  expenses  of  any  political  cam- 
paign or  election;  (e)  every  person  who  shall,  directly  or  in- 
directly, pay,  give,  contribute,  or  promise  any  money  or  other 
valuable  thing  to  defray  or  toward  defraying  the  cost  or  ex- 
penses of  any  campaign  or  election  to  any  person,  commit- 
tee, company,  club,  organization,  or  association,  other  than  to 


ELECTIONS  517 

a  treasurer  or  a  political  agent,  but  this  provision  shall  not 
apply  to  any  expenses  for  postage,  telegrams,  telephoning, 
stationery,  printing,  expressage,  or  traveling  incurred  by  any 
candidate  for  office  or  for  nomination  thereto,  so  far  as  may 
be  permitted  under  the  provisions  of  this  act;  (f)  every 
person  who,  in  order  to  secure  or  promote  his  own  nomina- 
tion or  election  as  a  candidate  for  public  office,  or  that  of 
any  other  person,  shall,  directly  or  indirectly,  promise  to 
appoint,  or  promise  to  secure  or  assist  in  securing  the  ap- 
pointment, nomination  or  election  of  any  other  person  to 
any  public  position,  or  to  any  position  of  honor,  trust,  or 
emolument;  provided,  however,  that  any  person  may  publicly 
announce  his  own  choice  or  purpose  in  relation  to  any  ap- 
pointment, nomination,  or  election  in  which  he  may  be  called 
to  take  part,  if  he  shall  be  nominated  for  or  elected  to  any 
public  office;  (g)  every  person  who  shall,  directly  or  indi- 
rectly, by  himself  or  through  another  person,  make  a  pay- 
ment or  promise  of  payment  to  a  treasurer  or  political  agent 
in  any  other  name  than  his  own,  and  every  treasurer  or  po- 
litical agent  who  shall  knowingly  receive  a  payment  or  prom- 
ise of  payment,  or  enter  or  cause  the  same  to  be  entered  in  his 
accounts  in  any  other  name  than  that  of  the  person  by  whom 
such  payment  or  promise  of  payment  is  made;  (h)  every  per- 
son who  shall  violate  any  of  the  provisions  of  section  three, 
four,  or  five,  of  this  act. 

Sec.  10.  Every  person  who  shall  violate  any  of  the  pro- 
visions of  this  act,  for  the  violation  of  which  no  other  penalty 
is  provided,  or  who  shall  be  guilty  of  any  corrupt  practice, 
shall  be  fined  not  more  than  one  thousand  dollars,  or  impris- 
oned not  more  than  two  years,  or  both;  provided,  however, 
that  this  section  shall  not  apply  to  violations  of  any  of  the 
provisions  of  section  seven  or  section  eight  of  this  act.  Any 
person  who,  whether  officially  or  otherwise,  donates  or  uses 
any  money  or  other  valuable  thing  belonging  to  a  private 
corporation,  for  political  purposes,  or  as  director  or  stockholder 
votes  for  or  sanctions  such  donation,  shall  be  fined  not  more 


518  HEADINGS  IN  CIVIL  GOVERNMENT 

than  one  thousand  dollars,  or  imprisoned  not  more  than  one 
year,  or  both.     .     .     . 

Approved,  August  25,  1909. 

98.   REPRESSION  OP  POLITICAL  CORRUPTION. 

Although  a  considerable  number  of  States  have  enacted  corrupt 
practices  acts  it  is  the  candid  opinion  of  a  careful  student  of  the 
subject  that  these  "laws  have  been  largely  dead  letter  laws  on  the 
statute  book."  J  The  obstacles  in  the  way  of  the  enforcement  of 
laws  against  bribery  and  corruption,  together  with  the  methods  by 
which  these  obstacles  may  be  overcome  are  thus  stated  by  Mr.  Francis 
E.  McGovern:  [1907]. 

In  the  work  of  putting  corruptionists  behind  prison  bars 
the  first  and  most  indispensable  requirement  is  an  honest 
grand  jury.  Without  the  assistance  of  such  an  agency  po- 
litical corruption  has  nowhere  been  successfully  exposed. 
Whether  in  St.  Louis,  Minneapolis,  Milwaukee,  Grand  Rapids, 
Green  Bay,  Boston,  Buffalo,  Pittsburg,  Harrisburg  or  San 
Francisco,  the  story  is  everywhere  the  same.  Whatever  in 
this  respect  has  been  done  anywhere,  the  grand  jury  has  ac- 
complished. 

Nor  is  the  reason  why  this  should  be  so  difficult  to  perceive. 
Wherever  criminal  actions  may  be  begun  by  the  filing  of  in- 
formations as  well  as  by  indictments,  as  is  the  rule  now  in 
many  States,  the  prosecution  of  ordinary  crimes  does  not  re- 
quire the  intervention  of  a  grand  jury.  In  larceny,  embez- 
zlement, burglary  and  murder,  in  addition  to  the  public  wrong 
which  constitutes  the  gist  of  the  offense,  there  is  also  a  private 
injury,  peculiar  to  the  person  whose  property  has  been  stolen 
or  embezzled,  whose  house  has  been  broken  into,  or  whose 
relative  has  been  killed,  as  the  case  may  be ;  and  as  a  rule  the 
one  who  suffers  this  private  injury  will  see  to  it  that  the  ma- 
chinery of  justice  is  set  in  motion  and  the  crime  punished. 

This  is  not  so,  however,  in  the  case  of  bribery  and  other 
offenses  involving  corrupt  conduct  upon  the  part  of  public 

i  Proceedings  of  the  American  Political  Science  Association,  II,  171. 


ELECTIONS  519 

officials.  Here  no  one  in  particular  suffers  an  injury  peculiar 
to  himself  or  different  from  that  sustained  in  common  by  all 
persons  living  in  the  same  community.  The  injury  is  inflicted 
upon  the  community  as  a  whole;  and  here  as  elsewhere,  the 
maxim  holds  true :  ' '  What  is  every  one 's  business  is  no  one 's 
business."  No  one  as  a  rule  is  willing  to  take  upon  his  own 
shoulders  the  responsibility  of  beginning  the  prosecution  of 
such  a  crime.  To  start  the  wheels  of  justice  moving  some  one 
or  some  body  of  men  who  represent  the  interest  and  the 
welfare  of  the  entire  community  must  act.  The  grand  jury, 
an  institution  more  venerable  than  the  common  law,  as  old, 
indeed,  almost  as  civilization  itself,  is  the  means  provided 
for  the  discovery  of  this  species  of  crime.  Through  the 
grand  jury  the  law  of  the  State  speaks  in  the  name  of  the 
whole  people,  impartially  denouncing  crime  wherever  it  may 
be  found,  vindicating  innocence  wherever  it  exists  and  de- 
fending liberties  of  the  people  from  all  unjust  attack. 

Not  only  is  the  grand  jury  charged  with  the  special  duty  of 
accusing  those  who  have  directly  wronged  the  public,  but  it 
also  has  at  its  disposal  the  means  for  properly  accomplish- 
ing this  work.  Without  stating  its  reasons  or  outlining  its 
purposes,  it  may  compel  the  attendance  of  witnesses  and  the 
production  of  books  and  documents.  It  meets  in  secret  and 
usually  enjoins  secrecy  also  upon  all  who  appear  to  testify 
before  it.  Thus  its  action  cannot  easily  be  anticipated,  in- 
fluenced, forestalled  or  frustrated,  as  proceedings  before  an 
examining  magistrate  may  be ;  for  secrecy  of  procedure  is  the 
one  essential  prerequisite  to  the  obtaining  of  legal  evidence 
of  this  species  of  crime. 

Second  only  in  importance  to  the  employment  of  grand 
juries  as  a  legal  agency  for  the  repression  of  political  corrup- 
tion is  the  assistance  furnished  by  immunity  laws.  Such 
statutes  have  been  devised  as  substitutes  for  the  constitutional 
privilege  against  compulsory  self-incrimination,  and  while 
fulfilling  this  legal  requirement  also  compel  the  disclosure  of 
evidence  of  crime  which  otherwise  would  go  unpunished. 

Bribery,  which  is  far  the  most  frequent  offense  involving 


520          READINGS  IN  CIVIL  GOVERNMENT 

political  corruption,  is  essentially  a  crime  of  darkness.  As 
a  rule  but  two  persons  have  knowledge  of  it,  the  bribe-giver 
and  the  bribe-taker.  Of  disinterested  spectators  there  are 
none.  Instead,  the  parties  to  a  bribery  transaction  contrive 
to  meet  in  secret,  there  arrange  the  details  of  their  compact 
in  private  and  leave  behind  no  record  or  memorandum  of  it. 
Each  is  equally  guilty,  and  each  has  the  strongest  motive, 
therefore,  for  concealing  the  crime.  In  the  absence  of  an  im- 
munity statute,  for  either  to  disclose  the  transaction  may 
result  in  his  own  prosecution ;  for  in  such  case  his  admission 
of  guilt  can  be  used  against  him,  while  as  to  his  partner  in 
crime  it  would  be  mere  hearsay,  not  evidence.  Under  these 
circumstances  the  punishment  of  this  and  kindred  offenses 
has  often  been  placed  practically  beyond  the  power  of  the 
law. 

To  meet  this  situation  and  to  enable  those  charged  with 
the  enforcement  of  penal  statutes  to  cope  with  crime  of  the 
sort  here  under  consideration,  immunity  laws  have  been 
enacted.  If  it  be  said  that  it  is  unjust  that  bribe-givers 
should  be  permitted  to  go  free  while  bribe-takers  are  sent  to 
prison,  or  vice  versa,  the  answer  is,  that  it  is  better  that  one 
of  two  guilty  persons  should  be  given  immunity  than  that 
both  should  escape  prosecution,  and  a  crime  which  strikes  at 
the  very  foundation  of  free  institutions  should  go  entirely 
unwhipped  of  justice. 

Favoritism  has  no  place  in  the  administration  of  such  a 
law  and  is  not  a  constituent  element  of  it.  Like  the  principle 
of  self-defense,  the  immunity  idea  is  based  on  the  law  of 
necessity  and  can  never  be  justifiably  invoked  where  suffi- 
cient evidence  may  be  obtained  without  resorting  to  it.  In 
the  practical  administration  of  this  law,  those  who  first  tender 
evidence  of  offenses,  such  as  are  here  under  consideration, 
will  ordinarily  receive  immunity  from  prosecution  for  their 
part  in  the  transaction,  simply  because  their  proffer  is  first 
in  point  of  time.  Should  two  witnesses  to  the  same  trans- 
action offer  to  turn  State's  evidence  at  the  same  time  as 
has  occurred,  an  interesting  race  for  the  grand  jury  room 


ELECTIONS  521 

is  assured.  Even  in  such  a  case,  however,  no  serious  diffi- 
culty can  arise.  The  principal  offender  should  be  prosecuted 
and  his  victim  given  immunity  upon  testifying  as  required 
by  law.  Nor  will  the  fact  that  one  of  these  persons  is  a  bribe- 
giver  and  the  other  a  bribe-taker  be  of  any  significance  or 
assistance  in  solving  the  problem.  In  one  case,  the  bribe- 
giver  may  be  the  chief  offender,  and  the  bribe-taker  one  who, 
though  fairly  honest,  has  been  tempted  beyond  his  power  of 
resistance.  In  another  case,  the  bribe-taker  may  be  the  prin- 
cipal felon  and  the  bribe-giver  a  business  man  of  ordinary 
honesty  who  submitted  to  the  exactions  of  those  in  power  very 
much  as  the  solitary,  unarmed  traveler  submits  to  the  de- 
mands of  a  highwayman.  Questions  such  as  these  afford  no 
legitimate  place  for  dogmatism  or  theorizing.  Each  case 
must  be  considered  and  dealt  with  upon  its  own  peculiar 
facts  and  circumstances. 

Effective  as  the  immunity  law  thus  is  as  a  weapon  in  the 
hands  of  those  engaged  in  the  prosecution  of  official  mis- 
conduct, it  is  even  more  powerful  as  a  preventive  of  this 
species  of  crime.  Wherever  a  statute  of  this  sort  exists, 
every  person  who  plans  or  contemplates  the  commission  of 
bribery  is  charged  with  notice  that  as  soon  as  he  attempts 
to  put  his  unlawful  intention  into  execution  he  will  have 
placed  himself  at  the  mercy  of  his  accomplice,  who  may  at 
any  time  safely  turn  about  and  expose  him.  This  considera- 
tion alone  justifies  the  enactment  of  immunity  laws,  and 
well  illustrates  in  this  modern  field  of  jurisprudence  the 
wisdom  of  the  ancient  maxim,  "an  ounce  of  prevention  is 
worth  a  pound  of  cure." 

Provided  with  an  honest  grand  jury  and  armed  with  an 
immunity  law,  any  community  can,  if  it  will,  root  out  and 
expose  political  corruption  so  far  as  legal  agencies  are  capable 
of  uncovering  and  arraigning  at  the  bar  of  justice  crime  of 
any  sort.  But  the  conviction  and  punishment  of  those 
arraigned  is  a  far  more  difficult  task. 

This  is  so  from  the  very  nature  of  the  case.  In  bribery, 
for  example,  the  testimony  of  the  accomplice  or  partner  in 


522          HEADINGS  IN  CIVIL  GOVERNMENT 

crime,  when  clear  and  convincing  is  always  sufficient  for 
indictment,  but  may  prove  inadequate  at  the  trial.  The  de- 
fendant, whether  guilty  or  innocent,  can,  if  he  will,  oppose 
his  oath  to  that  of  his  accuser  as  to  eveiy  material  circum- 
stance in  the  case  and  summon  to  his  assistance  from  among 
his  friends  the  full  complement  of  witnesses  who  will  swear 
to  his  former  good  character  and  unspotted  reputation.  It 
is  true  that  sometimes  there  may  be  additional  corroborate  > 
facts  upon  the  side  of  the  prosecution;  but  ordinarily  tlu> 
case  will  go  to  the  jury  upon  the  oath  of  the  State's  principal 
witness,  in  opposition  to  that  of  the  accused.  The  situation 
of  this  witness,  moreover,  is  not  above  criticism,  nor  can  his 
credibility  be  placed  beyond  question.  Of  necessity  he  is  a 
self-confessed  criminal,  whom,  if  his  testimony  be  true,  the 
immunity  law  alone  keeps  outside  of  prison  bars.  Then,  too, 
there  are  always  the  presumption  as  to  the  defendant's  inno- 
cence and  the  burden  of  proof  resting  upon  the  State  to 
establish  his  guilt  beyond  a  reasonable  doubt.  Under  these 
circumstances  is  it  strange  that  in  many  cases  where  good  peo- 
ple are  well  satisfied  there  was  guilt  there  should  be  acquittals 
at  the  close  of  jury  trials  ? 

In  such  cases,  however,  the  mere  fact  of  prosecution  is  not 
without  significance.  Though  ultimately  unsuccessful  a  pub- 
lic trial  may  have  accomplished  all  or  nearly  all  that  a  con- 
viction could.  Here  the  facts  are  laid  bare  beneath  the  eye 
of  the  whole  community,  and  public  opinion  draws  its  infer- 
ences from  such  facts  quite  independently  of  the  verdict  of 
the  twelve  men  who  happened  to  sit  as  jurors  in  the  case. 
And,  after  all,  the  breaking  up  of  a  vicious  system  and 
the  elevation  of  the  standard  of  official  honesty,  not  the 
punishment  of  any  man  or  set  of  men,  are  the  important 
things. 

In  like  manner  great  good  may  be  accomplished  and  a  real 
victory  for  honest  government  won,  wherever  official  miscon- 
duct is  even  fairly,  impartially  and  fearlessly  charged  with 
crime.  In  a  country  such  as  ours,  public  opinion  is  unques- 
tionably a  mighty  force.  Anything  which  goes  to  mold  it  by 


ELECTIONS  523 

arousing  public  attention  and  directing  public  thought  to 
specific  wrongs  which  threaten  the  State,  is  of  the  highest 
significance  and  value.  The  average  person,  moreover,  who 
commits  bribery,  or  any  of  the  crimes  which  involve  political 
corruption,  suffers  quite  as  much  punishment  as  a  conviction 
can  impose  before  his  case  is  even  called  for  trial.  Exposure 
and  disgrace,  the  deserved  estrangement  of  old  time  friends, 
the  inevitable  and  almost  unconscious  suspicion  of  even  his 
nearest  kindred,  his  own  remorse,  heightened  and  intensified 
a  hundredfold  because  of  an  awakened  public  conscience — 
these  are  the  things,  more  than  prison  stripes,  which  strike 
deepest  into  the  heart  and  most  mortally  wound  the  pride  of 
the  average  man  who  has  risen  in  business  or  official  station 
sufficiently  high  to  have  an  opportunity  or  a  motive  for  the 
commission  of  this  species  of  crime. 

I  speak  now,  of  course,  only  of  those  who,  though  guilty 
in  fact,  cannot  be  or  have  not  been  convicted.  That  there 
are  many  such  no  well  informed  person  can  doubt.  Mani- 
festly the  great  danger  here,  however,  is  that  innocent  men 
may  be  unjustly  accused  under  circumstances  which  make  it 
very  difficult,  if  not  impossible,  for  them  completely  to  vin- 
dicate themselves.  In  such  cases  great  and  even  irreparable 
harm  may  be  done.  The  only  safeguard  against  this  possi- 
bility is  the  exercise  of  caution  and  sound  judgment,  equal 
care  at  all  times  for  the  rights  of  the  accused  and  the  State, 
and  the  prosecution  of  no  one  for  a  merely  technical  offense 
in  which  there  is  not  also  moral  turpitude. 

In  the  work  of  prosecuting  these  quasi-political  offenders 
serious  obstacles,  of  course,  are  encountered,  at  every  turn. 
From  the  beginning  to  the  end,  not  only  of  each  case,  but  of 
each  campaign  against  official  dishonesty,  they  line  the  road 
at  almost  every  point. 

First  in  order  of  treatment,  though  possibly  not  of  impor- 
tance, is  incompetence,  timidity  and  disloyalty  on  the  part 
of  prosecuting  officers.  An  illustration  of  what  I  mean  was 
recently  furnished  in  this  State  in  a  case  where  a  district 
attorney  was  removed  from  office  by  the  governor  because  of 


524          HEADINGS  IN  CIVIL  GOVERNMENT 

his  refusal  to  prosecute  indictments  for  bribery  which  had 
been  returned  by  the  grand  jury  of  his  county.  Fortunately 
instances  of  this  kind  are  rare.  But  when  they  occur  the 
gravity  of  the  situation  needs  no  comment.  If  the  man  who 
must  bear  the  chief  burden  of  this  work  is  not  equipped  or 
lacks  relish  for  his  task,  little  indeed  can  be  expected  in  the 
way  of  accomplishment. 

Next  and  more  important  among  these  obstacles  are  weak 
and  perverse  juries,  both  grand  and  petit.  Some  trial  juries 
seem  to  be  immune  to  evidence  of  crimes  involving  official  dis- 
honesty and  refuse  to  convict  no  matter  how  overwhelming 
the  proof  of  guilt  may  be.  Not  to  be  outdone,  grand  juries 
have  likewise  refused  to  indict,  although  abundant  evidence 
to  warrant  such  action  was  submitted  to  them.  It  is  matin- 
of  current  history  that  the  law  relating  to  the  manner  of 
selecting  grand  jurors  in  this  State  was  recently  changed  be- 
cause it  was  found,  at  least  in  some  localities,  that  grand 
jurors  selected  in  the  old  way  by  aldermen  and  supervisors 
would  not  do  their  duty. 

Unfit  jurors  are  attributable  principally  to  two  causes; 
lack  of  care,  judgment,  honesty  and  discrimination  upon  the 
part  of  those  who  make  up  the  lists  and  the  disinclination  of 
good  men,  when  selected,  to  serve.  The  latter  cause  is  con- 
stantly operative.  It  is  a  familiar  scene  upon  the  first  day  of 
each  term  of  court  to  see  the  strongest  and  most  capable  men 
upon  the  panel  file  up,  one  at  a  time,  before  the  judge  to 
present  their  reasons,  good,  bad  and  indifferent,  why  they 
should  be  excused  from  jury  duty,  and  to  witness  the  best 
material  thus  melt  away  under  the  kindly,  good-natured,  and 
obliging  disposition  of  the  judge. 

The  witnesses  called  by  the  prosecution  in  actions  involving 
political  corruption  often  sympathize  more  with  the  defense 
than  with  the  State  and  their  disposition  whenever  possible 
to  suppress  evidence,  distort  facts  and  suggest  defensive  mat- 
ter is  another  obstacle  to  the  successful  prosecution  of  this 
class  of  cases.  At  the  trial  it  is  not  unusual  indeed  to  find 
the  State's  principal  witness  in  league  with  the  accused  and 


ELECTIONS  525 

willing  to  tell  the  truth  only  so  far  as  he  may  be  compelled 
to  do  so  under  fear  of  prosecution  for  perjury.  .  .  . 

Another  obstacle  to  reform  along  the  line  here  proposed  is 
hostile  public  sentiment.  All  men  are  opposed  to  dishonesty 
in  the  abstract  and  are  willing  to  applaud  an  assault  upon 
it  undertaken  in  another  city,  county  or  State.  But  it  makes 
a  world  of  difference  whose  ox  is  gored.  Outside  of  St. 
Louis  the  whole  country  approved  Mr.  Folk's  conduct  as  cir- 
cuit attorney;  but  had  he,  upon  the  record  thus  universally 
applauded,  sought  renomination  and  re-election  to  that  office, 
it  is  safe  to  say  that  the  voters  of  St.  Louis  would  have  over- 
whelmingly and  enthusiastically  defeated  him.  The  treat- 
ment his  candidacy  for  governor  received  there  shows  this. 
Mr.  Henry  once  told  a  Los  Angeles  audience  that  when  he 
was  engaged  in  prosecuting  timber  and  land  thieves  in  Oregon 
he  came  to  visit  his  old  home  in  San  Francisco  and  found  the 
whole  city  back  of  him  in  his  work.  But  when  he  came  to 
San  Francisco  and  began  his  campaign  there  against  graft, 
only  a  divided  city  was  back  of  him.  And  it  is  so  everywhere. 
Reform  of  ourselves  or  of  our  city  is  seldom  either  pleasant 
or  popular.  Besides,  to  assail  political  corruption,  no  matter 
where,  is  to  throw  down  the  gauntlet  to  the  most  powerful 
political  and  financial  influences.  It  is  only  natural  that 
these  forces  should  resist  the  assault  with  all  the  power  at 
their  command  and  should  even  assume  the  offensive  and  in 
turn  make  war  upon  the  agencies  of  the  law  engaged  in  the 
task  of  enforcing  its  penalties  against  them.  Thus,  venal 
newspapers  will  be  enlisted  in  the  contest  and  an  under- 
current of  hostile  sentiment  will  be  started,  which,  sooner  or 
later,  will  manifest  itself  in  mistrials,  perverse  verdicts, 
adverse  rulings  by  trial  judges  and  indefensible  decisions  by 
courts  of  last  resort. 

Notwithstanding  all  these  difficulties,  however,  political  cor- 
ruption may  be  repressed  by  legal  means.  Recent  history 
proves  this.  To  doubt  that  in  the  future  this  history  will  be 
repeated  is  to  doubt  the  permanency  of  free  institutions  and 
the  capacity  of  a  free  people  for  self-government. 


526          EEADINGS  IN  CIVIL  GOVERNMENT 


99.   THE   RECALL. 

The  following  selection  gives  the  section  of  the  charter  of  Los 
Angeles  providing  for  the  recall.  This  device  for  checking  the  mis- 
government  of  elective  officials  before  the  expiration  of  the  terms 
for  which  they  are  chosen  has  been  twice  successfully  employed  in 
that  city.  In  the  last  instance,  the  mayor  of  the  city,  after  more 
than  two  years  of  his  term  had  expired  was  forced  from  office  be- 
cause he  was  about  to  turn  the  board  of  public  works,  having  in 
charge  the  construction  of  a  twenty-five  million  dollar  aqueduct, 
over  to  political  henchmen,  and  was  permitting  corruptionist  influ- 
ences to  gain  control  of  the  city  administration.  About  two  weeks 
prior  to  the  date  set  for  the  recall  election  the  mayor  resigned.  The 
election  was,  however,  carried  to  a  completion  and  the  reform  can- 
didate successfully  installed.  The  charter  provides  as  follows: 

Sec.  198c.  The  holder  of  any  elective  office  may  be  re- 
moved at  any  time  by  the  electors  qualified  to  vote  for  a  suc- 
cessor of  such  incumbent.  The  procedure  to  effect  the  re- 
moval of  an  incumbent  of  an  elective  office  shall  be  as  follows : 
A  petition  signed  by  electors  entitled  to  vote  for  a  successor 
to  the  incumbent  sought  to  be  removed,  equal  in  number  to 
at  least  25  per  centum  of  the  entire  vote  for  all  candid 
for  the  office,  the  incumbent  of  which  is  sought  to  be  removed, 
cast  at  the  last  preceding  general  municipal  election,  demand- 
ing an  election  of  a  successor  of  the  person  sought  to  be 
removed,  shall  be  filed  with  the  City  Clerk;  provided,  that 
the  petition  sent  to  the  Council  shall  contain  a  general  state- 
ment of  the  grounds  for  which  the  removal  is  sought.  The 
signatures  to  the  petition  need  not  all  be  appended  to  one 
paper,  but  each  signer  shall  add  to  his  signature  his  place  of 
residence,  giving  the  street  and  number.  One  of  the  signers 
of  each  such  paper  shall  make  oath  before  an  officer  competent 
to  administer  oaths,  that  the  statements  therein  made  are  true, 
and  that  each  signature  to  the  paper  appended  is  the  genuine 
signature  of  the  person  whose  name  purports  to  be  thereunto 
subscribed.  Within  ten  days  from  the  date  of  filing  such 
petition  the  City  Clerk  shall  examine  and  from  the  great 
register  ascertain  whether  or  not  said  petition  is  signed  by 


ELECTIONS  527 

the  requisite  number  of  qualified  electors,  and  if  necessary, 
the  Council  shall  allow  him  extra  help  for  that  purpose,  and 
he  shall  attach  to  said  petition  his  certificate  showing  the 
result  of  said  examination.  If,  by  the  Clerk's  certificates  the 
petition  is  shown  to  be  insufficient  it  may  be  amended  within 
ten  days  from  the  date  of  said  certificate.  The  Clerk  shall, 
within  ten  days  after  such  amendment,  make  like  examination 
of  the  amended  petition,  and  if  his  certificate  shall  show  the 
same  to  be  insufficient,  it  shall  be  returned  to  the  person  filing 
the  same,  without  prejudice,  however,  to  the  filing  of  a  new 
petition  to  the  same  effect.  If  the  petition  shall  be  found  to 
be  sufficient  the  Clerk  shall  submit  the  same  to  the  Council 
without  delay.  If  the  petition  shall  be  found  to  be  sufficient 
the  City  Council  shall  order,  and  fix  a  date  for  holding  the 
said  election,  not  less  than  thirty  days  nor  more  than  forty 
days  from  the  date  of  the  Clerk's  certificates  to  the  Council 
that  a  sufficient  petition  is  filed. 

The  City  Council  shall  make  or  cause  to  be  made  publica- 
tion of  notice,  and  all  arrangements  for  holding  of  such  elec- 
tion; and  the  same  shall  be  conducted,  returned,  and  the 
result  thereof  declared,  in  all  respects,  as  are  other  city  elec- 
tions. The  successor  of  any  officer  so  removed  shall  hold  office 
during  the  unexpired  term  of  his  predecessor.  Any  person 
sought  to  be  removed  may  be  a  candidate  to  succeed  himself, 
and,  unless  he  requests  otherwise,  in  writing,  the  Clerk  shall 
place  his  name  on  the  official  ballot  without  nomination.  In 
any  such  removal  election,  the  candidate  receiving  the  highest 
number  of  votes  shall  be  declared  elected.  At  such  election  if 
some  other  person  than  the  incumbent  receives  the  highest 
number  of  votes,  the  incumbent  shall  thereupon  be  deemed 
removed  from  the  office  upon  qualification  of  his  successor. 
In  case  the  party  who  receives  the  highest  number  of  votes 
should  fail  to  qualify  within  ten  days  after  receiving  notifica- 
tion of  election,  the  office  shall  be  deemed  vacant.  If  the  in- 
cumbent receives  the  highest  number  of  votes  he  shall  con- 
tinue in  office. 


528          READINGS  IN  CIVIL  GOVERNMENT 


ADDITIONAL  READINGS 

1 — Party  Finance,  Macy,  J.,  Party  Organization  and  Ma- 
chinery, 218-29. 

2 — The  Boss,  The  Party  and  The  System,  Howe,  F.  C.,  The 
City  the  Hope  of  Democracy,  92-112. 

3 — Party  Methods,  Shaw,  A.,  Political  Problems  of  American 
Development,  145-53. 

4 — Elections  and  their  Machinery,  Bryce,  J.,  American  Com- 
monwealth, II,  142-53. 

5 — The  War  Against  Bossdom,  Ibid.,  166-74. 

6— The  Present  State  of  the  Ballot  Laws  in  the  United  States, 
Luddington,  A.,  American  Political  Science  Review,  III, 
252-61. 


INDEX 


Abbott,  L.,  15. 

Agriculture,  work  of  Department 
of,  403-405. 

Aldrich  Act,  476. 

Amendment,  of  Articles  of  Con- 
federation, 39,  40,  43;  of  Fed- 
eral Constitution,  51,  70,  71; 
process  of  difficult,  54,  156;  of 
State  constitutions,  265,  266. 

Amidon,    C.    F.,    69,    82. 

Anti-Federalists,  oppose  adoption 
of  the  Constitution,  44-46. 

Appeals,  criminal,  in  the  United 
States,  330;  in  England,  331. 

Apportionment  of  representatives, 
148. 

Appropriations,  national,  method 
of  making,  437,  439. 

Articles  of  Confederation,  31-39; 
defects  in,  39-44,  46. 

Avery,  B.,  162. 

Babb,  J.  E.,  320. 

Baldwin,  S.  E.,  311. 

Ballot,    the    short,    384-391;    the 

Australian,  509. 
Bank,    central,   plan   of,   478-479; 

advantages  of,  479-482. 
Bank  currency,  473,  481. 
Bank  of  the  United  States,  power 

of  Congress  to   charter,  56,   57. 
Bank  reserves,  471-473. 
Banking,  national,  464,  468. 
Board    of    Estimates,    municipal, 

453. 

Bradford,   G.,  226. 
Braxton,  A.  C.,  325. 


Cabinet,  English,  150,  193,  194, 
214. 

Cabinet  government,  193,  194. 

Cabinet,  organization  of,  211-214; 
powers  of,  214-218;  relation  of 
to  Congress,  218-223,  226-228; 
to  committees,  223-226;  to  the 
President,  227-228. 

Candidates,  nomination  of,  374; 
great  numbers  of,  371,  386,  388, 
389,  507. 

Cannon,   J.   G.,    169. 

Childs,    R.    S.,    384. 

Choate,  R.,  247. 

Cities,  powers  of,  362;  democracy 
in,  503. 

City  Council,  decline  of,  349,  351- 
353. 

Citizenship,  definition  of,  95,  96; 
rights  of,  under  the  Declaration 
of  Independence,  97,  under  the 
14th  Amendment,  96,  100,  101- 
105 ;  protected  by  the  States,  98- 
100,  101,  102,  by  the  Federal 
Government,  103-105;  responsi- 
bility of,  126-128. 

Civil  Rights  Case,  101. 

Civil  Service  Commission,  creation 
of,  234;  twenty-fifth  annual  re- 
^pprt  of,  238. 

Civil  Service  Examinations,  234- 
236. 

Civil  Service,  reform  of,  233-234; 
classification  of,  235. 

Clearing-house  banks,  470. 

Clearing-house  certificates,  470, 
474. 


Bribery,    difficulties   of   conviction      Clinton,  G.,  44. 


for,  518,  521. 
Bryan,  W.  J.,  26,  29. 
Bryce,   J.,    51,   61,    145,    170,   215, 

261,  271,  273,  435. 


529 


Commerce,  regulation  of,  78,  79; 
national  character  of,  82-86; 
States  not  able  to  assume  con- 
trol of,  86-88;  States  should 


530 


INDEX 


share  in  control  of,  90-91; 
power  to  regulate  interstate, 
483-485,  492-497;  control  of 
State,  485-486. 

Commerce,  Court  of,  recommend- 
ed, 499. 

Commission  Government,  in  cities 
of  Iowa,  356. 

Committee  on  Rules,  of  House, 
133,  143;  of  Senate,  164. 

Committee  on  Ways  and  Means, 
223,  435. 

Committees,  of  House,  145-148; 
of  Senate,  162-166;  relation  of 
Congressional  to  heads  of  de- 
partments, 223-226. 

Commons,  J.  R.,  21. 

Congress,  powers  of,  56-61 ;  power 
of  increasing,  74;  danger  of  too 
great  power  of,  77-81 ;  power 
of  to  regulate  commerce,  484, 
492-494. 

Congressional   Government,   196. 

Conservation   of   resources,   407. 

Constitutional  government,  origin 
of,  10;  meaning  of,  11-15;  dis- 
tinct from  self-government,  19. 

Constitution,  English,  62. 

Constitution,  Federal,  ratification 
of  in  New  York,  44;  amendment 
of,  51,  70,  71;  amendment  of 
difficult,  54,  156;  construction 
of  by  Marshall,  56-61,  250-254; 

? resent  meaning  of,  65-67,  69- 
0;  strict  construction  of,  67- 
68,  76-81;  loose  construction  of. 
69-73,  82-87 ;  fundamental 
character  of,  245,  251,  252; 
power  of  courts  to  interpret, 
253. 

Constitutions,  State,  history  of, 
261-265;  amendment  of,  265, 
266;  recent  changes  in,  265- 
270. 

Constitutions,  written  and  un- 
written, 52;  danger  of  too  rigid, 
53-55;  interpretation  of  the 
rigid,  61-65;  interpretation  of 
the  written,  251,  252. 

Consular  service,  408-409. 

Conventions,      nominating,      great 


number  of,  374;  management 
of,  376. 

Cooley,  T.  M.,  67. 

Corporation  tax,  426;  advantages 
of,  427 ;  methods  of  assessing, 
428-433. 

Corporations,  national  character 
of,  84-85,  87;  federal  incorpora- 
tion of,  78,  79,  500-501 ;  federal 
regulation  of,  487,  490,  492, 
494-497. 

Corrupt  Practices  Act  of  Connecti- 
cut, 513. 

Corruption,  political,  suppression 
of,  518-525. 

Courtesy  of  the  Senate,  174,  178- 
179. 

Court  of  commerce,  recommended, 
499-500. 

Court  of  customs  appeals,  estab- 
lished, 447. 

Court,  Supreme,  attitude  of  to- 
ward trusts,  493,  496  (see  also 
Supreme  Court). 

Courts,  criminal,  procedure  of,  in 
the  United  States,  228-232;  in 
England,  232-234. 

Courts,  independence  of,  246; 
power  of  to  declare  acts  un- 
constitutional, 244,  245,  250- 
254;  method  of  interpreting 
law,  255-258. 

Crawford,  C.  C.,  105. 

Credit  Currency,  473. 

Credit  system,  467. 

Currency,  elastic,  473,  481. 

Customs  districts,  448. 

Customs  duties,  collection  of,  448- 
450;  evasion  of,  450-451  (see 
also  Tariff). 


Dalzell,  J.,  136. 

Declaration  of  Independence,   and 

self-government,    15-17;    rights 

held   under,   97. 
Deeming,  H.  K,  503. 
Democracy  and  Liberty,  310. 
Democracy  and  privilege,   506. 
Department,     of     Treasury,     219- 

220;  of  Agriculture,  403-405. 


INDEX 


531 


Departments,  heads  of  should 
have  seats  in  Congress,  226- 
232. 

Depositories,  national,  475-476. 

Des  Moines  Plan  of  Government, 
356. 

De  Tocqueville,  Alexis,  111. 

Dewey,   D.   R.,   448. 

Direct  legislation,  value  of,  SOS- 
SOS,  309. 

Dodd,   W.  F.,  265,  295. 

Dougherty,  J.  H.,  184. 

Durand,  E.  D.,  349. 

Election  of  judges,  312-314. 

Election  of  senators,  attempts  to 
change,  156-160;  advantages  of 
popular,  160-162. 

Elections,  multiplicity  of,  273- 
275;  primary,  378-384;  reform 
of  507-512;  regulation  of  in 
Connecticut,  513-517;  in  Los 
Angeles,  526;  in  Oregon,  118- 
124. 

Elective  officers,  reduction  of,  386- 
391,  507-509;  recall  system  for, 
526. 

Electoral  system,  defects  in,  184- 
191. 

Electors,  presidential,  district  sys- 
tem of  choosing,  188;  evils  of 
the  general  ticket  system  of 
choosing,  189-191. 

Executive  supremacy,  federal, 
causes  of,  196-200;  significance 
of,  200-202. 

Extracdtion,  92-94. 

Fairlie,  J.  A.,  202,  211,  232,  452. 
Federalism,  present  day,  77,  80. 
Federalist,  The,  171,  243. 
Federalists,  urge  the  adoption  of 

the  Constitution,  46-50. 
Filibuster,  137,  167. 
Finance,    defects   in   congressional, 

435-440;    municipal,   452-455. 
Folk,  J.  W.,  126. 
Forest  service,  407-408. 
Fourteenth    Amendment,     95,    96, 

101,  113,  116. 


Franchise,  municipal,  taxation  of, 
456;  value  of,  459;  sale  of,  461. 

Franchise,  public  utilities,  nature 
of,  278-279. 

Freeholder's  Charter,  339,  340, 
341,  342,  345,  348. 

Freund,  E.,  288. 

Functions  of  government,  basis 
of,  397-398;  essential  and  non- 
essential,  400. 

Gage,  L.,  464. 

Garner,  J.  W.,  303,  328. 

Gerry,  E.,  222. 

Gibbon  vs.  Ogden,  483. 

Government,  distinguished  from 
state,  7 ;  special  training  re- 
quired for,  305,  310;  by  igno- 
rant, danger  of,  310;  proper 
sphere  of,  396-397;  essential 
and  non-essential  functions  of, 
397-402. 

Government  ownership,  409-410. 

Governors,  State,  extension  of 
powers  of,  263;  administrative 
powers  of,  266;  legislative 
powers  of,  266-268,  274;  com- 
pared to  the  President,  271- 
272;  general  powers  of,  273. 

Habeas  Corpus,  writ  of,  origin, 
105-109;  Act  of  1679,  109-110. 

Hamilton,  A.,  39,  41,  44,  46,  243. 

Harlan,  J.  M.,  68. 

Hart,  M.  K.,_£7. 

Haynes,  G.  H.,  J18,  156. 

Heads  of  DepaftnientSj-  federal, 
president's  control  ov^r,  ^207- 
210;  powers  of,  ^l  5-218;  aHT 
mission  to  congress""  proposed  in 
Washington's  administration, 
219-222;  admission  to  Congress 
advocated,  226-231. 

Hepburn  Act,  486. 

Herbert,  H.  A.,  149. 

Hinds,  A.  C.,  129. 

Hinsdale,  M.  L.,  218. 

Home  Rule,  municipal,  develop- 
ment of,  336-342;  vs.  State 
control,  343 ;  constitutional 
provision  for,  in  California,  339, 


532 


INDEX 


in  Missouri,  339,  in  New  York, 

342;     advantages    of,    344-349; 

law  providing  for  in  Iowa,  356. 
House   of   Commons,    149. 
House   of   Representatives,    debate 

in,  129-131,  144;  rules  of,  136- 

144;     committe  s    of,    145-148; 

compared  to  House  of  Commons, 

149-154. 
Hughes,  C.  E.,  26,  30. 

Implied  powers,  doctrine  of,  55. 

Income  tax,  433. 

Income  tax  amendment,  434. 

Incorporation,  federal  act  for  op- 
posed, 78,  79;  federal,  recom- 
mended, 500-501. 

Independent  Treasury,  evils  of, 
465,  466-469,  475. 

Initiative  and  Referendum,  de- 
velopment of,  295-296;  in  Ore- 
gon, 120-123,  296-298;  results 
of  in  Oregon,  298-303;  failure 
of,  305-308;  limitations  of,  309. 

Interstate  commerce,  limited  view 
of,  77-81,  89-91 ;  broad  view  of, 
82-88;  power  to  regulate,  483- 
485,  492-497,  499. 

Interstate  Commerce  Act  of  1906, 
486. 

Interstate  Commerce  Commission, 
enlarged,  490;  appeals  from, 
497-498. 

Immunity  laws,  519. 

Jefferson,    T.,    232. 

Judges,  federal,  term  of,  243;  du- 
ties of,  245-246;  character  of, 
247-250. 

Judges,  State,  appointment  of, 
311;  evils  of  election  of,  312- 
314;  term  of,  315-316;  power 
of  in  criminal  trials,  332. 

Judiciary,  power  of  to  interpret 
the  Constitution,  in  the  United 
States,  62;  on  the  Continent, 
63;  character  of,  243,  244. 

Jurors,  selection  of,  316,  317;  in- 
struction of,  318. 

Jury  duty,  desertion  of,  321-323. 


Jury    trial,    description    of,    316- 
319;      constitutional      provision 
for,    320;    defects    in,    320 
defects  in  civil,  325-328;  delays 
in  criminal,   328-329. 

Landon,  J.,  44. 

Law,  delays  of,  328-329,  333. 

Laws,  courts  to  decide  constitu- 
tionality of  250-254;  how  de- 
clared void,  255-258;  effect  of 
declaring  void,  259.  . 

Leacock,  S.,  3. 

Lecky,  W.  E.  H.,  310. 

Legislation,  federal,  extension  of, 
74-76;  quality  of,  77-78. 

Legislation,  State,  restrictions  on 
specal,  269-270;  defects  in,  282- 
288 ;  volume  of  local  and  special, 
283-285;  confusion  in,  286-288; 
improvement  of,  288-295. 

Legislative  Reference  Bureaus, 
292,  293,  294. 

Legislatures,  State,  power  of  de- 
creased, 263,  268;  power  over 
cities,  337-338,  340-342. 

Lieber,  Francis,  327. 

Liberty,  Mill's  Essay  on,  392; 
growth  of,  T92-396;  under 
popular  government,  394-395 ; 
proper  sphere  of,  396-397. 

Lodge,  H.  C.,  177. 

Loose  Construction,  55-61,  69. 

Los  Angeles,  Charter  of,  526. 

Low,  A.  M.,  171. 

McClain,  E.,  255,  316. 
McConachie,  L.  G.,   145,  223. 
McCulloh  vs.  Maryland,  55,  72. 
McGovern,  F.  E.,  518. 
Madison,  James,   39,  219,  221. 
Magna  Charta,    10. 
Maine,  Henry,  112. 
Maltbie,  M/R.,   344. 
Marbury  vs.  Madison,  250. 
Marshall,  J.,  55,  72,  250,  483. 
Martin,   J.,   402. 
Mayor     government,     development 

of.  349;  limitations  of,  352-353; 

failure  of,  in  New  York,  354,  in 


INDEX 


533 


Brooklyn,   355,   in  Philadelphia, 

355. 
Merit    system,    adoption    of,    234; 

recent  extension  of,  338-42;  ad- 
vocated, 510. 

Merriam,  C.  E.,  378,  507. 
Mill,  J.  S.,  392. 
Miller,  S.  F.,  72,  84,  98. 
Municipal       government,       recent 

tendency  of,  336-342,  349-350. 
Municipal  programme,   361-366. 
Municipal  problems,  study  of,  366- 

367. 

Municipal  finance,  452-455. 
/Municipal    ownership,    growth    of 

in  the  United   States,  409-410; 

policy  as  to,  459,  462. 

Nation,  definition  of,  7-9. 

National  Banking  Act,  464,  467. 

National  Banks,  475,  478. 

National   Civic   Federation,  492. 

National  Municipal  League,  re- 
port of,  350;  program  of,  361. 

Nationality,  growth  of,  9;  in  the 
United  States,  19. 

New  York,  public  service  commis- 
sion law  of,  275. 

Oberholtzer,  E.  P.,  336. 

Oklahoma,   constitution   of,   265. 

Oregon,  primary  elections  in,  118- 
120;  education  of  voters  in, 
120-125;  initiative  and  referen- 
dum in,  296-303;  election  of 
senators  in,  299,  302. 

Osborne,  T.  M.,  275. 

Panic  of  1907,  469-471. 

Panics,  prevention  of,  474. 

Parliamentary  government,  193- 
195. 

Parties,  local  and  national,  369- 
370;  duties  of,  371;  organiza- 
tion of,  372,  376;  corruption 
of,  504-506. 

Party  machine,  the,   373. 

Party,  membership  in,  378 ;  pri- 
mary registration  in,  379;  pri- 
mary tests,  379-380;  platforms, 
119,  381-383. 


Payne-Aldrich  Tariff  Act,  441. 

Pendleton    Report,    226,    230. 

Platform,    party,    119,    381-383. 

Political  corruption,  repression  of, 
518-525. 

Politician,  the,  methods  of,  376, 
386-388,  504. 

President,  may  sit  in  Senate,  177; 
recent  growth  in  power  of,  196- 
202;  power  of  removal  of,  203- 
207;  power  of  direction  of,  207- 
210. 

Presidential  government,  193,  196. 

Primary  elections,  in  Oregon,  118; 
legislation  on,  378-384;  limita- 
tions of,  507,  512;  cost  of,  511. 

Public  Service  Commissions,  275, 
278,  280. 

Public  Service  corporations,  mo- 
nopolistic character  of,  276-280. 

Public  utilities,  ownership  of, 
409-410,  459-462;  corruption 
in,  504,  505. 

Railroad  rates,  regulation  of,  487- 
490. 

Recall,  the  system  of,  526. 

Reclamation  Act,  405. 

Reclamation  service,  406. 

Reed,  T.  B.,  129,  130,  138,   142. 

Reinsch,  P.,   167,  282. 

Removals,  in  civil  service,  presi- 
dent's power  of,  203-207;  under 
Jackson,  233. 

Representative  government,  origin 
of  in  England,  21-23;  growth 
of  in  America,  24-25;  compared 
with  primary  government,  303- 
310. 

Representatives,  duty  of,  26;  re- 
lation to  the  people,  27-30;  ap- 
portionment of  federal,  148. 

Revenue  bills,  federal,  origin  of, 
172,  181;  defective  method  of 
passing,  435-437. 

Revenue,  federal,  collection  of  cus- 
toms duties,  448-450;  evasion  of 
customs  duties,  450-451;  collec- 
tion of  internal,  451. 

Ridgley,  W.  B.,  469. 

Rigid  constitution,   52,  53,  61. 


534 


INDEX 


Roberts,  G.  E.,  475. 

Rogers,  H.  W.,  65,  76. 

Root,  E.,  66,  84. 

Rules  of  the  House  of  Representa- 
tives, development  of,  136-139; 
present  working  of,  139-144; 
Speaker  Cannon  on,  169. 

Rules  of  the  Senate,  165,  166,  168. 

Scruggs,  W.  L.,  95,  113. 

Secretary  of  the  Treasury,  reports 
to  Congress,  219,  220;  presence 
in  Congress  opposed  by  Madison, 
221 ;  favored  by  Gerry,  222. 

Self-government,  meaning  of,  17- 
19;  how  acquired,  19-21. 

Seligman,  E.  R.,  411,  428. 

Senate,  committees  of,  162-166; 
freedom  of,  debate  in,  167-169; 
power  of  over  money  bills,  172, 
173,  181;  control  of  appoint- 
ments, 173-175,  178-180;  treaty- 
making  power  of,  175-177,  180- 
181;  growth  of  power  of,  182- 
183. 

Senators,  federal,  legislative  elec- 
tion of  opposed,  156-160;  ad- 
vantages of  popular  election  of, 
160-162;  election  of  in  Oregon, 
299,  302. 

Sherman  Anti-Trust  Act,  490,  494. 

Slaughter  House  Case,  98,   102. 

Socialism,  tendency  toward,  399, 
401;  growth  of  in  the  United 
States,  402-410. 

igociety,  distinguished  from  the 
state,  7. 

Sovereignty,  definition  of,  6-7. 

Speaker  of  the  House  of  Repre- 
sentatives, control  of  debate  by, 
129-130;  character  of,  131;  ap- 
pointment of  committees  by, 
132,  133;  and  the  committee  on 
rules,  133,  143;  powers  of  legiti- 
mate, 134-136,  142. 

State  constitutions,  history  of, 
261-265;  recent,  265-270. 

State,  definition  of,  3-5;  sphere  of 

action  of,  397-398. 
State    regulation   of   public   utili- 


ties, 276-280;  of  industry,  398- 
401. 

States  Rights,  77;  danger  of  pres- 
ent, 84-86. 

State  sovereignty,  89.      , 

Strict  construction,  65. 

Suffrage,  danger  of  extension  of. 
111-113;  under  the  14th  and 
15th  amendments,  113-115,  llf.- 
118;  in  the  Southern  States, 
115-116;  the  Supreme  Court  on, 
116-118. 

Supreme  Court,  attitude  of,  to- 
ward the  Constitution,  67-68; 
toward  the  rights  of  citizenship, 
100-104;  toward  the  suffrage, 
116-118;  toward  trusts,  493, 
496. 

Taft,  W.  H.,  497. 

Taney,  R.  B.,  69,  104. 

Tariff  Act  of  1909,  441-448. 

Tariff,  maximum  and  minimum, 
446,  447 ;  Philippine,  447. 

Taussig,  F.  W.,  419. 

Taxation  of  corporations,  426;  ad- 
vantages of,  427 ;  methods  of  as- 
sessing, 428-433. 

Taxation  of  franchises,  456^459. 

Taxation  of  incomes,  433-434. 

Taxation  of  property,  lack  of  uni- 
formity in,  411;  evasion  of,  413; 
dishonesty  in,  415;  regressive 
forms  of,  416;  double,  417. 

Taxation  of  securities,  methods  of, 
419-420;  exemption  from,  421, 
426-427;  evasion  of,  420;  rates 
of  excessive,  423-426. 

Taxes,  basis  of,  421-422. 

Tenure  of  Office  Act,  204,  205. 

Treasury  Department,  organiza- 
tion of,  207,  219. 

Treasury,  United  States,  policy  of, 
464-466. 

Treaties,  175-177,  180,  181. 
Trusts,    prohibition    of,    490-492; 
Chicago  conference  on,  492,  493. 

U'Ren,  W.  S.,  298. 

Verdict  of  jury,  can  be  set  aside, 


INDEX 


535 


319;  character  of,  323-324;  evils 

of    unanimous,    in    civil    trials, 

325-328. 
Veto,    governor's    power    of,    267- 

268;    under    the    initiative    and 

referendum,  297. 
Vote,    the     intelligent,     126;     the 

blind,  384-388;  the  independent, 

390. 
Voters,  education  of,   118-126. 


Ways    and    Means,    committee    of, 

223,  435. 

Wilcox,  D.  F.,  361,  456. 
Williams,  T.,  492. 
Willoughby,  W.  W.,  Ill,  397. 
Wilson,  W.,  9,  19,  89,  369. 
Wise,  J.  S.,  92,  97,  116,  483. 
Woodburn,  J.  A.,  192. 

Young,  J.  T.,  196. 


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